QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212

State of Queensland (Department of Education) (Applicant)

v

Queensland Teachers Union of Employees (Respondent)
	
CASE NO:
	D/2020/135
	
PROCEEDING:
	Industrial Dispute
	
DELIVERED ON:
	16 December 2020	
MEMBER:

HEARD AT:
	McLennan IC

Brisbane

Conferenced on 27 November 2020, and 8 December 2020.
	
  ORDERS:	 Full orders per last page.	

CATCHWORDS:

LEGISLATION, AWARDS AND CERTIFIED AGREEMENTS:

CASES:

APPEARANCES:

	
INDUSTRIAL LAW – Notice of Industrial Dispute – whether industrial action has occurred – whether industrial action is protected – whether interim orders are appropriate.

Industrial Relations Act 2016 (Qld) s 262, s 232, s 233, s 234, s 451, s 473, sch 5

Teaching in State Education Award – State 2016

Department of Education State School Teachers’ Certified Agreement 2019

ABCC v CFMEU [2009] FCA 1092

Australian Capital Territory v Australian Education Union [2010] FWA 3454

Department of Education and Training v Queensland Union of Teachers (D/2020/43)

New South Wales Department of Education v New South Wales Teachers Federation [2010] NSW IRComm 55

State of Queensland v Shankar [2014] QIRC 159 

The Director-General, Department of Education v The State School Teachers’ Union of WA (Incorporated) [2010] WAIRComm 219

Ms C Toy of Crown Law on behalf of the State of Queensland (Department of Education)

Ms T Edmunds, with Mr C Wood, of the Queensland Teachers Union of Employees
	
Reasons for Decision

[1]	The State of Queensland (Department of Education) (the Department, the Applicant) filed a Notice of Industrial Dispute with the Industrial Registry on 20 November 2020 (the Dispute Notice). The Respondent to that dispute is the Queensland Teachers Union of Employees (the QTU, the Respondent).

[2]	The Dispute concerns a Directive issued by the QTU to their members dated 7 October 2020 (the Directive), which provides (emphasis as original):

All QTU members are hereby directed to cease all activities associated with the National Assessment Program – Literacy and Numeracy (NAPLAN) for the remainder of 2020 and the 2021 school year.

[3]	The Department has sought injunctive relief, and in effect is requesting that the ban on work related to NAPLAN as contained in the Directive be lifted. 

[4]	Following a conference of this matter before me, I had the parties file written submissions as to their respective positions, and advised them that I would consider making interim orders. Following those written submissions, I held a further conference, but the parties have been unable to agree as to a final or interim solution to the dispute. 

[5]	It is not necessary or indeed possible to form concluded views about the matter at this stage, due to the somewhat limited material and evidence before the Commission. I am only considering the issue on an interim basis. The parties are entitled to pursue the matter further at arbitration. 

[6]	For the reasons that follow, I have determined that the QTU has engaged in industrial action by banning the performance of particular work, and that industrial action is unprotected as it falls outside the negotiating period for the relevant certified agreement and is not otherwise exempted. On an interim basis, the appropriate course is that the QTU and its members be directed to desist from that industrial action.

[7]	The relevant industrial instruments include:

•	Teaching in State Education Award – State 2016 (the Award); and
•	Department of Education State School Teachers’ Certified Agreement 2019 (the CA).

The Directive

[8]	On 7 October 2020, the QTU issued a members’ newsflash titled “Members vote to ban NAPLAN” (the newsflash). That newsflash, insofar as it related to NAPLAN, is extracted below (original emphasis retained): 

To: QTU MEMBERS								

Members vote to ban NAPLAN

NAPLAN ballot results

At the close of the ballot yesterday, more than 94 per cent of the more than 8,000 members who participated voted to ban NAPLAN in all its forms. 

While the ballot return is lower than the usual voter turnout, the intention of members participating in the ballot was clear – NAPLAN must go. 

In accordance with the ballot outcome, Executive last night decided to issue the following Directive:

All QTU members are hereby directed to cease all activities associated with the National Assessment Program – Literacy and Numeracy (NAPLAN) for the remainder of 2020 and the 2021 school year.

The QTU has previously outlined the many issues with NAPLAN (refer to Newsflash 41-20), and these issues remain. This current ballot is the latest in a long series about concerns with NAPLAN. 

What does banning NAPLAN mean? 

A ban on all activities associated with NAPLAN includes ceasing:

•	administration of the NAPLAN pen and paper test
•	administration of the NAPLAN Online test
•	participation in NAPLAN training and professional development
•	participation in NAPLAN practice testing
•	participation in NAPLAN load testing
•	participation in NAPLAN load testing 
•	participation in NAPLAN item testing
•	participation in NAPLAN school readiness testing
•	participation in the self-service test window
•	participation in NAPLAN data analysis/meetings outside of school hours
•	any other activity involving NAPLAN in its current form (this includes timetabling; providing or checking student information for either the department, ESA or the QCAA; pre-test sample testing; statistical sampling – please note this is not an exhaustive list)
•	any activity, including those above, associated with other NAP trials.

This directive applies to all QTU members, irrespective of whether they participated in the recent ballot. The QTU’s message for the past few years has been clear – NAPLAN in all its forms must go.  

[9]	The newsflash also goes on to discuss various Queensland political parties’ views on NAPLAN. 

The Dispute Notice

[10]	The Dispute Notice, and the submissions attached to it, may be summarised as follows: 

•	The duties associated with the administration of NAPLAN testing are entirely consistent with the role and function of a teacher and these duties have been performed by state school teachers in Queensland for well over a decade. 

•	The Directive amounts to unprotected industrial action. 

•	The Directive has immediate operational implication for the Department. 

•	The National Education Council has agreed that all schools will transition to online assessment by 2022. 

•	Participation in NAPLAN is required under s 77 of the Australian Education Act 2013 (Cth) and reg 43 of the Australian Education Regulation 2013 (Cth).

•	Participation in NAPLAN is required for Commonwealth government funding, which for 2021 is projected to be $2.11 billion for Queensland state school. 

•	Should Queensland state schools not participate due to the Directive, the state may be deemed non-compliant with that legislation and risks being subject to financial penalties at the discretion of the Federal Minister for Education. 

•	It would also result in Queensland state schools being the only educational cohort in the country not participating in the national assessment. This would have significant consequences on the accuracy of national benchmarking. 

•	In 2018, the parties developed an updated joint statement regarding NAPLAN, namely the ‘Joint Statement on National Assessment Program – Literacy and Numeracy (NAPLAN)’ (the Joint Statement). 

•	The QTU’s actions to date have resulted in only 14 of 952 invited state schools participating in the School Readiness Test across semester 2, 2020. This has restricted the opportunity for school leaders and teaching staff to build confidence in online assessment and effectively assure the robustness of school technical infrastructure to transition to on-line assessment in 2021 in compliance with the National Education Council agreement. 

•	Despite requests from the Department to the QTU to withdraw the Directive, they have refused to do so. 

•	The Department seeks:

•	An injunction under s 473 of the Industrial Relations Act 2016 (Qld).

•	That the QTU, its Executive, officers, agents and employees withdraw the directive to members, and not issue any further directives in relation to the non-provision of a normal program of instruction and associated duties, including the administration and duties associated with NAPLAN for the 2020 and 2021 school years. 

•	That the QTU, its Executive, officers, agents and employees not encourage or incite any member of the QTU to boycott or disrupt the administration of NAPLAN for the 2020 and the 2021 school years. 

The QTU’s submissions

[11]	The QTU’s written submissions filed 2 December 2020 can be summarised as follows: 

•	The school year will conclude on 9 December 2020. 

•	An injunction is a serious step in the progress of an industrial dispute. It is a discretionary remedy, which requires the Commission to consider the balance of convenience and the ‘risks and benefits’ of granting injunctive relief. That requires the Commission to consider the past conduct of the parties in question and their anticipated conduct. 

•	There have been numerous ballots conducted by the QTU about whether to conduct industrial action in relation to NAPLAN. The majority of those have succeeded. On each such occasion, the matter was resolved in a timely manner. 

•	The Australian Education Union have advised that a meeting between a number of State Ministers for Education, including Minister Grace, is to occur on or about 11 December 2020 to further discuss NAPLAN. Further, the QTU will meet about the issue on 6 March 2021. There may be some relevant developments about NAPLAN arising from those meetings. 

•	Given the timing of the relief sought, it is the QTU’s submission that the dispute has been brought prematurely. 

•	The Joint Statement provides that, while there is a legitimate place for limited NAPLAN preparation related to the mode and conditions of testing itself, excessive test preparation using previous tests is not necessary or useful. Familiarisation activities should not be conducted in the vicinity of the tests. Repeated practice NAPLAN tests and the like are not endorsed. 

•	The QTU submits that the Department has not complied with that element of the Joint Statement, and has engaged in dispute proceedings about that matter. 

•	The QTU is particularly concerned with several planned aspects of NAPLAN preparation, including: 27 January 2021 date entry/testing, 4 February 2021 data entry/testing, protocol training in March 2021, testing in week 9 of the school term, and practice testing on 22 and 23 April 2021. Those matters have not been negotiated with the QTU. 

•	The Department also uses the data collected from NAPLAN in a manner which contravenes the Joint Statement, namely in determining who will be enrolled and the manner of enrolment. 

•	The Department has therefore not come to the dispute with ‘clean hands’, which is a necessary pre-requisite to attaining equitable relief. On that basis, there should be no orders made and instead the parties should continue negotiations about the matter. 

•	The Joint Statement also addresses ‘student wellbeing’ in limiting preparation exercises and practice testing. 

•	The Workload Advisory Council was established by the parties. The qualitative data provided to that advisory council indicates a worrying trend regarding the delivery of NAPLAN and associated tasks as a clear and emerging workplace health and safety issue. 

•	Of particular concern is the impact on student wellbeing and welfare. There is evidence that children experience increased anxiety related to NAPLAN. That has also been recognised by Minister Grace, who noted that students felt significant stress about NAPLAN and educators were concerned at the growing amount of time and pressure in preparation for testing, and the use of NAPLAN data. 

•	The impacts on teacher, and in particular, student wellbeing are significant enough for NAPLAN to be the sole focus of the Joint Statement with an entire section regarding ‘Student wellbeing’. The workplace health and safety aspects and duty of care to students continue to be a focus of discussions at a ministerial level across the country. To that end, the negative impacts on teachers and students are clear. 

•	NAPLAN preparation is not a part of teaching and learning, nor the duties and role of a teacher. The Award and the Certified Agreement are silent in relation to NAPLAN. There is a statutory requirement for students to be educated in Queensland, but there is no requirement in the Education (General Provisions) Act 2006 (Qld) for students to engage in NAPLAN. 

•	The role description of a teacher is silent as to NAPLAN. It is implausible to consider, operationally, how NAPLAN could be a factor of a role. Teachers teach different classes and year levels each year. 

•	The Curriculum, Assessment and Reporting Framework lists 65 demonstrations of schools providing curriculum and assessing and reporting to parents and carers. NAPLAN accounts for just three of those. The other references to NAPLAN in that document are also limited. In correspondence from the Department to state school principals on 19 November 2020, which discussed reporting requirements and workload issues, there was no mention of NAPLAN. 

•	As for non-compliance with dispute resolution processes, it is submitted that ‘high level discussions at both a ministerial level and Director-General level surpass both the dispute resolution processes in the Award and the Certified Agreement’. There is little practical purpose to recommence dispute resolution at a lower hierarchal level where the persons who would do so ultimately require the confirmation of those ‘higher level’ entities. 

•	In any event, the dispute resolution processes purportedly non-complied with relate to the interpretation of implementation of the Award. That does not apply in this instance. 

•	The relief sought is premature. It should therefore be struck out. In the alternative, the Commission should delay deciding the matter to allow the parties to further negotiate, and consider the matter closer to the scheduled 2021 testing. 

•	The terms of the relief sought are also unduly broad and would encapsulate the prevention of industrial action on the part of the QTU for the entire 2021 school year. 

The Department’s submissions

[12]	The Department’s reply submissions are largely reflective of the Dispute notice, and can be briefly summarised as follows: 

•	The ban on NAPLAN constitutes unprotected industrial action. It is strike action within the definition of the IR Act, and is not connected with any proposed bargaining instrument. 

•	There are no reasonable concerns held by the QTU with respect to workplace health and safety. Indeed, that term carries with it a high evidentiary standard.

•	NAPLAN, and the preparation for it, constitutes the ordinary work of teachers. In several decisions interstate, including New South Wales, Canberra, and Western Australia that has been found to be the case. 

•	Teachers are required to comply with all lawful and reasonable directions of their employer. That includes undertaking NAPLAN. 

•	There is some urgency in seeking the present orders. Already, the QTU’s actions have resulted in the Department missing Federal and State reporting deadlines. The test has online component, which requires preparation on the part of teachers, students and the department. 

•	An order to prevent the industrial action continuing will also be in the public interest, because it will inform the QTU’s members that they are engaging in unprotected industrial action, which itself may have ramifications. 

•	The proposed orders, of which there are 10, relate to the administration and undertaking of NAPLAN. They are largely reflective of orders previously made by Deputy President Bloomfield in a previous similar matter. 

Legislative framework

[13]	Industrial action may be protected or unprotected. Each of those categories are defined in ch 4 pt 8 of the IR Act: 

232 Right to take protected industrial action

A negotiating party for a proposed bargaining instrument has a right to take protected industrial action for the proposed instrument, subject to this part.

233 When industrial action is protected industrial action

(1)	Industrial action is protected industrial action for a proposed bargaining instrument if the industrial action—
(a)	meets the requirements of this section; and
(b)	is not industrial action to which section 234 applies.

(2)	The industrial action must be—
(a)	organised, or engaged in, by a protected person for the purpose of—
(i)	supporting or advancing claims made in relation to the proposed instrument; or
(ii)	responding to industrial action mentioned in paragraph (b)(i) by an employer who will be covered by the proposed instrument; or
(b)	organised, or engaged in, by an employer who will be covered by the proposed instrument for the purpose of— 
(i)	supporting or advancing claims made in relation to the proposed instrument; or
(ii)	responding to industrial action mentioned in paragraph (a)(i) by an employee who will be covered by the proposed instrument.

(3)	The following persons have not contravened, before the industrial action starts, the requirement to negotiate in good faith under section 173—
(a)	if the industrial action is a strike by an employee who will be covered by the proposed instrument—the negotiating party for the employee;
(b)	if the industrial action is a lockout by an employer who will be covered by the proposed instrument—the employer.

(4)	If the industrial action is engaged in by employees, the employees likely to be engaging in the industrial action have, before the industrial action is engaged in, been approved by the registrar under section 235 to engage in the industrial action.

(5)	Before the industrial action is engaged in, notice of the industrial action must have been given under section 236.

(6)	The industrial action may be engaged in during conciliation for the proposed bargaining instrument.
Note—
However, see sections 240 and 241.
(7)	In this section—
protected person, for a proposed bargaining instrument, means—
(a)	an employee organisation that is a negotiating party for the proposed instrument; or
(b)	an officer or employee of that employee organisation acting in that capacity; or
(c)	an employee who is a member of that employee organisation and will be covered by the proposed instrument.

234 When industrial action is not protected industrial action

(1)	Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in—
(a)	on or before the nominal expiry date of any existing bargaining instrument or arbitration determination that will be replaced by the proposed instrument; or
(b)	during any peace obligation period for the proposed instrument.

(2)	Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in during arbitration for the proposed instrument.

(3)	The following persons must not engage in industrial action to which subsection (1) or (2) applies—
(a)	an employee who will be covered by the proposed instrument;
(b)	an employee organisation that is a negotiating party for the proposed instrument;
(c)	an officer or employee of that employee organisation acting in that capacity;
(d)	an employer who will be covered by the proposed instrument.

Note—
This subsection is a civil penalty provision.

[14]	The IR Act, at sch 5, provides several relevant definitions: 

industrial action means a lockout or strike.

strike—

1 Strike means the conduct of 2 or more employees employed or formerly employed by an employer, if—
(a)	the conduct is any of the following—
(i)	a wilful failure to perform work required under the employees’ employment contracts;
(ii)	the performance of work by the employees in a way that it is not customarily performed;
(iii)	the adoption of a practice or strategy by the employees resulting in a restriction, limitation or delay in the performance of work or a restriction or limitation of the product of work;
(iv)	a ban, restriction or limitation on the performance of work or accepting or offering work;
(v)	a wilful failure of the employees to attend work that is not allowed by the employer;
(vi)	a wilful failure of the employees to perform work in a way that is not allowed by the employer; and
(b)	the conduct occurs because of a combination, agreement or understanding, express or implied, entered into by the employees for any of the following purposes—
(i)	to compel or induce an employer to agree to employment conditions;
(ii)	to compel or induce an employer to employ or stop employing a person or class of persons;
(iii)	to compel or induce an employer to comply with demands made by the employees or any other employee;
(iv)	to help employees in the employment of another employer to compel or induce the other employer in a way mentioned in subparagraph (i), (ii) or (iii);
(v)	to cause loss or inconvenience to an employer in the conduct of business;
(vi)	to incite, instigate, aid, abet or procure another strike.

2 Also, strike includes conduct capable of constituting a strike under paragraph (a) even though the conduct relates to only part of the functions the employees must perform in their employment.

3 However, strike does not include action by an employee if—
(a)	the action was based on a reasonable concern by the employee about an imminent risk to the employee’s health or safety; and
(b)	the employee did not unreasonably contravene a direction of his or her employer to perform other available work at the employee’s workplace, or another workplace, that was safe and appropriate for the employee to perform.

[15]	In determining what recourse may be appropriate, I am not bound by the specific relief sought by the parties:

451 General powers
		
(1)	The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)	Without limiting subsection (1), the commission in proceedings may—
(a) give directions about the hearing of a matter; or
(b) make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c) make an order it considers appropriate.
[16]	Noting that this proceeding is an Industrial Dispute, the powers contained in s 262 of the IR Act are relevant (emphasis added):

262 Action on industrial dispute
(1) This section applies if—
(a) notice of a dispute has been given by a party under section 261(2); or
(b) whether or not a notice of a dispute has been given under section 261—the commission considers it is in the public interest to take action under this section in relation to the dispute.

(2) Subsection (1)(b) applies irrespective of whether the parties are attempting to resolve the dispute.

(3) The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by—
(a) conciliation in the first instance; and
(b) if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute— arbitration.

(4) Without limiting subsection (3), the commission may do 1 or more of the following—
(a) direct any industrial action in relation to the dispute to stop or not happen;
(b) make orders, or give directions, of an interlocutory nature;
(c) exercise the commission’s powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;
(d) make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.

Analysis

[17]	The QTU clearly takes significant umbrage with the NAPLAN program, including the use of data collected from it. 

[18]	However, it is important to note that the merits of NAPLAN and the use of data collected from it are not relevant to the determination of this Dispute. This Decision is not an endorsement of NAPLAN - but rather is constrained to whether any industrial action has occurred, whether that action is protected or not, and then a consideration of the appropriate recourse. 

[19]	When considering s 230 of the Industrial Relations Act 1999 (Qld), which is materially similar to s 262 of the current IR Act, his Honour Vice President O’Connor explained:

Section 230 of the Act is designed to answer the discrete question that is before it, to resolve a dispute between the relevant parties. It does not permit the Commission to do any more.
Has industrial action occurred?

[20]	The Department submits that the Directive constitutes a ban on NAPLAN related work, which is an element of the duties of a state school teacher, in order to compel the Department to not undertake NAPLAN. 

[21]	The QTU, in effect, submits that NAPLAN testing and the preparation for that testing is not part of the work of their members. However, there are several problems in maintaining that position. 

[22]	First, both the test and the preparation for it has been engaged in by teachers in this state and around the country during usual work hours for over a decade. If the QTU held the view that such was not part of a teacher's duties, they could have had that issue decided in this Commission. That lends credence to the notion that NAPLAN, and the preparation for it, is part of the duties of the QTU’s members. 

[23]	Second, the notion that NAPLAN is not part of a teacher's duties does not appear anywhere in the Directive. In fact, 'banning' the work from being conducted in one sense acknowledges that it was incumbent upon the QTU’s members to do that work in the first place. If the QTU believed it wasn't part of their Member's duties, it might be said that there would be no cause to 'ban' that aspect of their work: it would not be their work to begin with. In any event, that certainly does not appear to be the reason for the Directive’s issuance. 

[24]	Third, while the word NAPLAN does not appear in the Award or CA, neither does 'test' or 'examination', except for in the context of teacher professional education. Clearly, though, preparing and administering tests and examinations with respect to school subjects is an integral part of a teacher's role. It is not essential that every individual element of a teacher's duties be expressly stated. Teachers, as with other employees, are required to undertake the lawful and reasonable directions of their employer, including incidental and peripheral tasks.

[25]	Fourth, the QTU submits that NAPLAN is scantly referenced in other materials, or forms only a small component of the work of a state school teacher. However, that is  obviated by the definition of a strike, which specifically includes conduct that relates to only part of the functions of an employee. 

[26]	The QTU also appears to submit that their actions are exempted from the definition of a strike because of workplace health and safety concerns. 

[27]	A strike does not include employee actions based upon a reasonable concern by the employee about an imminent risk to the employee’s health or safety, amongst other criteria. 

[28]	In reading the QTU’s material presently before me, including the Directive, those criteria are not satisfied, for several reasons. 

[29]	First, there must be a reasonable concern of an imminent risk to the employee’s health or safety. That requires the decision to be based upon evidence in existence at the time of the action occurring. As the Department submits, that is a relatively high standard. There is no such evidence before me at this stage. At the highest, there are several general concerns about the welfare of teachers and students in undertaking NAPLAN. 

[30]	Second, if it were the case that the QTU undertook their actions on the basis of a reasonable concern about an imminent risk to the employee’s health or safety, I would expect that to be expressly stated in the Directive. That is not the case. The Joint Statement does not address that issue in any real depth either. In one section, it speaks about student wellbeing, which has is quite different to whether there is an imminent risk to teachers. Setting aside for a moment that concerns for wellbeing are not inherently tantamount to an ‘imminent risk to the employee’s health or safety’, such imminent risk must be to the employees engaging in the industrial action. It cannot relate to some other entity; the protection afforded by that term cannot be taken by proxy. 

[31]	At this stage, on the materials before the Commission, I have concluded that NAPLAN is a part of the work to be performed by QTU members. That is, broadly, the position followed in other jurisdictions including the Australian Capital Territory, New South Wales, and Western Australia.

[32]	By banning those duties from being engaged in, the QTU has engaged in industrial action. 

Was the industrial action protected or unprotected? 

[33]	The requirements for industrial action to be classified as protected are set out in ss 233 and 234 of the IR Act. 

[34]	The action has been engaged in before the nominal expiry date of the current CA. On that basis, the industrial action is not protected.

What is the appropriate course? 

[35]	There is sufficient material before me to conclude, on an interim basis, that unprotected industrial action has occurred and is ongoing. Whether or not there may be further developments in government policies is not relevant at this stage.  

[36]	The submission from the QTU that there will be quite some time from the beginning of the next school year until the scheduled date of NAPLAN, and therefore it would be premature to make any orders, does not sufficiently appreciate that the unprotected industrial action has already occurred and is ongoing. Nor does it appreciate that the ban also covers preparation for the test, both in an administrative and technical capacity, and such preparation has already been hampered. The QTU elected to take industrial action at this stage, in advance of the actual test date. It does not follow that it is then premature for the Department to seek relief about that action. 

[37]	The QTU’s contentions about the joint statement not being complied with have limited relevance to the resolution of whether or not unprotected industrial action has been engaged in. It is open to them to pursue that matter by alternative means. However, even taking those submissions at their highest would not render the industrial action ‘protected’ within the meaning of the IR Act. Nor do they obviate the appropriateness of the cessation of that unprotected industrial action, in circumstances where the purported breaches of that Joint Statement relate to the implementation of the NAPLAN program or the use of data arising from that testing. The utility of the NAPLAN program is not relevant to the resolution of this dispute.  

[38]	The QTU has expressed that they would consider arbitrating this matter and would seek to call witnesses. They have also expressed that there may be some changes to the Department’s policies. That may well be so. My orders will be made on an interim basis. If the QTU deems to pursue this matter further to arbitration, or indeed the Department does, then naturally it will be open for another Member of this Commission to form their own conclusions as to the matter with the benefit of any such additional evidence. The parties will also be further assisted to potentially resolve the matter by agreement through conferences, which the QTU has expressed it desires.  

[39]	As for the QTU’s submissions regarding ‘high level discussions’ superseding the dispute resolution processes in the industrial instruments, that is incorrect. The Award and Certified Agreement processes are carried with the force of legislation. The processes established therein contain no suggestion that they may be cast aside on that basis. Those processes are agreed to by the parties at the time of certification, and they are required to comply with those.  

[40]	The Department seeks a variety of injunctions as a remedy in this dispute. The orders sought are in mandatory and prohibitory forms, and rather over-egg the pudding in my view. 

[41]	It is sufficient at this stage to Direct that, until further order, the industrial action cease, and not recommence. The QTU will also be required to communicate that information to their members. There is no reason to expect the QTU will not act in good faith and comply with those Directions. It appears to me that their members have always previously engaged in NAPLAN as directed by the Department. No doubt the QTU appreciates the ramifications of breaching an order in any event.

[42]	I order accordingly.

Orders:

1.	These orders shall come into effect immediately, and shall remain in force until otherwise ordered by the Commission. 

2.	Pursuant to s 262(4)(a) of the Industrial Relations Act 2016 (Qld) I direct that the unprotected industrial action engaged in by the Queensland Teachers Union of Employees (‘QTU’), namely the ban on engaging in NAPLAN contained in the QTU’s Directive issued 7 October 2020, is to immediately cease and not re-commence. 

3.	The QTU is to communicate that information, namely the content of Orders 1 and 2 above, to their members by 9am on 9 December 2020, by email or other similar communications.

4.	If the State of Queensland (Department of Education) (‘the Department’) or the QTU elects to pursue the matter further at arbitration, they are to advise the Industrial Registry to that effect. The parties will then re-convene before the Commission for a further conference, at a time and date to be advised, to settle the question or questions to be decided at arbitration. 

5.	The QTU shall file an affidavit with the Industrial Registrar by 4pm on Thursday 10 December 2020, as to whether there has been compliance with these orders, and if there has been default of compliance, what steps (if any) have been taken by the QTU to comply with these orders. 

6.	The Department shall file an affidavit with the Industrial Registrar by 4pm on Thursday 10 December 2020, as to whether there has been compliance with these orders, and if there has been default of compliance, what steps (if any) have been taken by the Department to comply with these orders.