DISPUTE RE INDUSTRIAL ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The Director General, Department of Education

APPLICANT

-v-

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

RESPONDENT

CORAM Commissioner J L Harrison

DATE Wednesday, 25 November 2009

FILE NO/S C 35 OF 2009

CITATION NO. 2009 WAIRC 01232

Result Order issued

Representation

Applicant Mr R L Bathurst (of Counsel)

Respondent Mr N Whitehead (of Counsel)

Order

WHEREAS this application was lodged pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) on 5 November 2009 whereby the applicant sought a conference requesting that the Commission issue orders with respect to education assistants employed by the respondent ceasing all industrial action taking place in relation to negotiations for a new industrial agreement to replace the Education Assistants’ (Government) General Agreement 2007 (“the Agreement”); and

WHEREAS on 6 November 2009 the Commission convened a conference with respect to this application; and

WHEREAS at this conference the applicant advised the Commission that the respondent had directed education assistants to commence industrial action from 26 October 2009 onwards; and

FURTHER that some, but not all, education assistants have engaged in industrial action consisting of bans on administrative duties, bans on supervision of students including but not limited to during recess and lunch, bans on bus duties and bans on school excursions; and

WHEREAS the applicant informed the Commission that employees who had implemented bans would have their pay withdrawn for the duration of the bans being in place; and

WHEREAS the applicant was seeking the following orders:

(a) the Union, its officers, employees, agents and members employed as Education Assistants by the respondent are to cease all industrial action including, without limitation, bans on administrative duties; bans on supervision of students; bans on bus duties; and bans on school excursions by no later than 5pm on 6 November 2009;

(b) the Union is to notify all its members employed in the Department of Education by 4pm on 6 November 2009 that they are to cease all industrial action relating to negotiations for a new industrial agreement to replace the Education Assistants’ (Government) General Agreement 2007;

(c) the Union, its officers, employees and agents are not to direct or encourage, in any way, employees working in the Department of Education to engage in any further industrial action relating to negotiations for a new industrial agreement to replace the Education Assistants’ (Government) General Agreement 2007;

(d) there be liberty to apply; and

WHEREAS the applicant informed the Commission that on 22 October 2009 it responded to the respondent’s log of claims with respect to a new industrial agreement for education assistants and this response was in accord with the Western Australian Public Sector Wages Policy 2009 with which the applicant is required to comply; and

WHEREAS on 23 October 2009 the applicant notified the respondent pursuant to s 42 of the Act that it wished to bargain in good faith for a new industrial agreement; and

WHEREAS the respondent advised the applicant on 9 November 2009 that it agreed to bargain in good faith pursuant to s 42 of the Act; and

WHEREAS the applicant put arguments in support of the issuance of orders being sought and the respondent opposed the issuance of these orders; and

WHEREAS the respondent confirmed that there was no intention to escalate the bans in place at this point in time; and

WHEREAS the Commission set down a further conference to be held on 9 November 2009 to hear further from the parties with respect to the impact of the bans at workplaces; and

WHEREAS prior to the conference commencing on 9 November 2009 the respondent advised the Commission that the bans which had been in place since 26 October 2009 had been lifted and there was therefore no need for the Commission to issue the orders being sought by the applicant; and

WHEREAS on the basis of this information the applicant did not pursue the issuance of the orders being sought; and

WHEREAS on 10 November 2009 the applicant sought an urgent conference on the basis that it had been notified that cleaners, gardeners and education assistants who are members of the respondent would be attending stop work meetings on 11 November 2009 commencing at 10.30 am; and

WHEREAS a conference was convened in the Commission late on 10 November 2009 and the respondent confirmed that the stop work meetings would be taking place throughout Western Australia between 10.30 am and 12.00 noon on 11 November 2009; and

WHEREAS at this conference the parties agreed to meet in the Commission the following day in an endeavour to reach agreement on a process for moving forward with respect to negotiations for a replacement industrial agreement for education assistants; and

WHEREAS at both a meeting and a conference held in the Commission on 11 November 2009 no understanding was reached between the parties with respect to an agreed process for holding further negotiations however, the respondent undertook to cease all industrial action for 14 days commencing on 12 November 2009 so that bargaining could take place with respect to a new industrial agreement for education assistants; and

WHEREAS the undertaking given by the respondent was as follows:

That the respondent by its officers, agents and employees and the respondent’s members employed by the applicant as cleaners, gardeners, education assistants and home economic assistants undertake to the Commission, the applicant and the Minister for Commerce not to take any industrial action in any form between 12 November 2009 and 25 November 2009 inclusive (“the Undertaking”); and

WHEREAS the applicant argued that the Commission should issue an order with respect to the Undertaking that the respondent’s members not undertake any industrial action in the next 14 days given that extensive industrial action taken to-date by the respondent’s members was having a detrimental impact on the running of Western Australian schools; and

WHEREAS the applicant also sought an order that the respondent give the applicant two days’ notice of any industrial action to be undertaken subsequent to 25 November 2009; and

WHEREAS the applicant undertook to engage in good faith bargaining with the respondent in the period 12 to 25 November 2009 and the applicant stated that it was open to reviewing its decision to withhold pay to the respondent’s members who had engaged in industrial action up to and including 10 November 2009 as part of these negotiations; and

WHEREAS the respondent committed to bargaining in good faith during the 14 days that the Undertaking was in place with a view to reaching an agreement with the applicant for a replacement industrial agreement; and

WHEREAS the Commission accepted the respondent’s commitment that the respondent and its members would abide by the Undertaking and that the respondent and its members would take the Undertaking seriously; and

WHEREAS the Commission expected the respondent and its members to abide by the Undertaking and the respondent was to take reasonable steps to immediately inform its members about the terms of the Undertaking; and

WHEREAS the Commission advised the parties that it expected the parties to meet regularly in the period 12 to 25 November 2009 to bargain in good faith with a view to reaching agreement on a replacement industrial agreement; and

WHEREAS the parties were advised that the Commission would hear from the parties as to the progress of the negotiations between the parties and any other issues either party wished to raise on 18 November 2009 and 25 November 2009; and

WHEREAS the application was adjourned until 18 and 25 November 2009 respectively, and the parties were advised that either party could request that a conference be convened at short notice prior to these dates; and

WHEREAS report back conferences were held in the Commission on 18 and 25 November 2009 respectively; and

WHEREAS at the conference held on 25 November 2009 the applicant requested that the Commission issue the following orders on the basis that the respondent’s members were to attend a half day stoppage the following day and return to their workplaces around 12.00 noon:

(a) the Union is to notify all its member employed in the Department of Education as education assistants by 5pm on 25 November 2009 that they are not to engage in any further industrial action of any sort whether relating to negotiations for a new industrial agreement to replace the Education Assistants’ (Government) General Agreement 2007 or otherwise;

(b) the Union, whether by its officers, employees, agents or otherwise, is not to direct or encourage, in any way, education assistants working in the Department of Education to engage in any further industrial action relating to negotiations for a new industrial agreement to replace the Education Assistants’ (Government) General Agreement 2007;

(c) there be liberty to apply; and

WHEREAS the applicant put the following arguments in support of the issuance of the orders being sought:

1. the previous stop work meeting undertaken by education assistants on 11 November 2009 was attended by approximately 10 per cent of education assistants employed by the respondent (630 employees) and over half of these education assistants could well have been working with special needs students, some with profound disabilities;

2. the applicant argues that this stoppage:

• was particularly targeted at the most vulnerable students, that is students with special needs;

• seriously compromised the ability of the respondent to fulfil its duty of care to students;

• seriously compromised the ability of the respondent to deliver educational programs to students;

3. the applicant maintains that bans previously in place by education assistants, including bans on photocopying, excursions, outside duty and bus duty have had a negative impact on disabled students:

• due to their disabilities, many students with special needs cannot be taught orally and must be taught with visual aids;

• schools such as Sir David Brand and Creaney Education Support Centre are unable to run if the photocopying of visual aides does not occur;

• when education assistants do not perform outside supervision a student’s education program in a social setting is compromised;

• for their own safety many students with special needs require close supervision whilst outside;

• using relief staff to supervise students with special needs is likely to lead to serious behavioural problems, such as violent behaviour;

• having education assistants supervise students getting on and off buses is important for the safety of students with special needs;

• a change in the people who supervise students with special needs at the buses can lead to violent behaviour from the students;

• excursions are not a break for students with special needs, they allow the students to learn to use the skills they are taught at school out in the community;

4. the applicant argues that the stop work attended by education assistants on 11 November 2009 seriously affected the applicant’s schools and its students in that:

• the applicant maintains that approximately 10 per cent or at least 630 of 7,800 education assistants attended the stop work meeting which was a significant number;

• in at least one education support centre, no education assistants attended the school out of the 32 rostered to attend that day and 15 out of 17 education assistants did not attend the Sir David Brand Centre which has 40 students and the care offered to students at these schools was seriously compromised as a result;

• even though schools managed to offer a teaching program and care for students during this stoppage this may not be the case if further stoppages are held particularly at the applicant’s 72 schools where students have disabilities;

5. the applicant maintains that tomorrow’s proposed strike action will have the following impact:

• students with severe disabilities require particularly close supervision and assistance by education assistants who know them and education assistants not being present can place a student’s health at serious risk;

• a change in routine such as that caused by a strike will cause many students with special needs, particularly students with autism, to behave violently to other students and staff;

• the violent behaviour caused by strike action puts other students and staff at risk of injury;

• not having education assistants at school due to strike action means that some students with disabilities are unable to eat;

• for some deaf and visually impaired students who rely on education assistants, not having an education assistant at school due to strike action means they cannot participate at all in classes;

• for some students with disabilities, not having education assistants at school due to strike action means they cannot go to the toilet and have to sit in their own faeces and urine, which is both humiliating and a serious health risk;

• at special education schools and centres, strike action causes the education program for students with special needs to stop;

• strike action can force schools to close, assuming parents are available to pick students up at all, the students may behave violently towards their parents;

• when education assistants working in mainstream schools do not attend for duty the duty of care towards students and their teaching programme is compromised;

6. the applicant argues that in exercising its jurisdiction the Commission shall have regard for the interest of the persons immediately concerned whether directly affected or not and, where appropriate, for the interest of the community as a whole and the applicant maintains that it is not in the public interest for the most vulnerable of students to be put at risk by further industrial action; and

WHEREAS the respondent made the following submissions in support of the orders being sought not issuing:

1. even though education assistants had bans in place up to 11 November 2009, excluding a ban on undertaking recess duty, these bans have had little or no impact on the teaching programmes offered to students and excursions and in any event the duty of care provided to students is the responsibility of teachers;

2. during the stoppages held on 6 August 2009 and 11 November 2009 the duty of care afforded to students was not compromised and the respondent’s members would not act to compromise their responsibilities towards students;

3. during the above stoppages schools successfully re-organised their programmes and operations to cater for students including students with disabilities and no school was closed during these stoppages to the best of the respondent’s knowledge including Malibu Education Support School;

4. the applicant is exaggerating the impact of the non-attendance of education assistants at schools where students have disabilities as these schools have and will be able to make sufficient arrangements to ensure that students are adequately fed and toileted notwithstanding the stoppage.  Furthermore, schools will still run their normal education programmes but maybe not the full programme;

5. the respondent argues that as its members would not put students at risk and as there will be minimal disruption to schools and their students if tomorrow’s stoppage goes ahead it is not in the public interest to issue the orders being sought; and

WHEREAS the Commission is of the view that the matters before it are industrial matters as they relate to issues pertaining to the employment relationship between the applicant and the respondent’s members and the rights of an organisation; and

WHEREAS the Commission is of the view that it has jurisdiction to issue the orders sought pursuant to s 44 of the Act which enables the Commission to issue orders with respect to an industrial matter; and

WHEREAS having heard from the applicant and the respondent and after considering the submissions made by both parties and when taking into account equity and fairness and the substantial merits of this case and relevant objects of the Act the Commission has formed the view that orders with respect to this application should issue; and

WHEREAS the Commission is of the view that some of the bans previously put in place by the respondent’s members have had a detrimental impact on the health and safety of some students especially profoundly disabled students and the teaching programmes run by some schools; and

WHEREAS the Commission is of the view that the proposed industrial action in the form of tomorrow’s stoppage particularly when taking into account the lack of notice given by the respondent and its members to the applicant and parents of students who will be affected by the stoppage will create difficulties for the respondent in ensuring that its responsibilities towards students, in particular students with profound disabilities, will not be compromised; and

WHEREAS in reaching the conclusion that orders should issue with respect to further industrial action taking place the Commission has also taken into account that the interests of those persons directly involved in this dispute, particularly profoundly disabled students, will be compromised if education assistants recommence industrial action; and

WHEREAS on 25 November 2009 the Commission issued Reasons for Decision by way of recital and a Minute of Proposed Order in this matter; and

WHEREAS on 25 November 2009 the Commission conducted a Speaking to the Minutes of Proposed Order; and

WHEREAS at this Speaking to the Minutes the respondent argued that the proposed order be limited to a ban on the stop work meeting being held on 26 November 2009 given the poor conduct of the applicant during the negotiations to date; and

WHEREAS the applicant opposed limiting the application of order 1; and

WHEREAS after hearing from the parties the Commission is of the view that the issuance of order 1 as proposed is appropriate in all of the circumstances;

NOW THEREFORE having heard Mr R L Bathurst of Counsel on behalf of the applicant and Mr N Whitehead of Counsel on behalf of the respondent, the Commission having regard for the interests of the parties directly involved, the public interest and to prevent the further deterioration of industrial relations, and pursuant to the powers vested in it by the Act, and in particular s44(6)(ba)(ii) and s44(6)(bb)(i), hereby orders:

1. THAT the respondent by its officers, agents and employees and the respondent’s members are not to undertake any further industrial action in any form in relation to negotiations for a new industrial agreement to replace the Education Assistants’ (Government) General Agreement 2007 including stop work meetings and bans and limitations on the normal duties undertaken by education assistants under their contracts of employment with the applicant.

2. THAT the respondent, by its officers, agents and employees are to take reasonable steps to immediately inform its members about the terms of this order and direct its members to comply with this order.

3. THAT this order is to remain in force until revoked or varied by the Commission.

4. THAT both parties have liberty to apply to vary this order.

Commissioner J L Harrison