Industrial Relations Commission New South Wales Medium Neutral Citation: Director-General of the New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93 Hearing dates: 7 July 2012 Decision date: 28 August 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court makes the following orders: (1) The NSW Teachers Federation is guilty of contravening the dispute order made by Walton J, Vice President on 25 June 2012 in Matter No IRC 697 of 2012. (2) The NSW Teachers Federation is fined an amount of $17,500 in relation to the contravention that occurred on 27 June 2012. (3) The penalty imposed by order (2) hereof is payable within 28 days of the date of this judgment. Catchwords: INDUSTRIAL RELATIONS ACT 1996 - Dispute orders - s 139 - contravention by New South Wales Teachers Federation - relevant principles - strike action taken in relation to Government plans for significant and far reaching school reform - deliberate breach - consideration of prior offences and refusal to acknowledge wrongdoing - penalty imposed at high end Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bluescope Steel (AIS) Ltd v AWU and Anor (No 2) [2005] NSWIRComm 210 Director General NSW Department of Education and Communities v NSW Teachers' Federation [2012] NSWIRComm 54 Director General of Education and Communities v NSW Teachers Federation [2012] NSWIRComm 92 Director General, Department of Education and Training v New South Wales Teachers' Federation [2000] NSWIRComm 103 Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58 Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 Fire and Rescue NSW on behalf of Department of Premier and Cabinet v New South Wales Fire Brigade Employees' Union [2012] NSWIRComm 76 Category: Principal judgment Parties: NSW Department of Education and Communities (Applicant) NSW Teachers' Federation (Respondent) Representation: Mr S Benson of counsel (Applicant) Mr N Dawson of counsel (Respondent) Crown Solicitor's Office (Applicant) Federation Law Lawyers (Respondent) File Number(s): IRC 723 of 2012 Judgment 1The Director-General of the New South Wales Department of Education and Communities ("the Department") has moved the Court to summons the New South Wales Teachers Federation ("the Federation") to show cause why action should not be taken against it arising from an alleged contravention of dispute orders made by Walton J, Vice President on 25 June 2012 (Director General NSW Department of Education and Communities v NSW Teachers' Federation [2012] NSWIRComm 54). Dispute orders 2The orders made by his Honour were in the following terms: 1. The New South Wales Teachers' Federation, by its officers, employees and members employed by the Department of Education and Communities is hereby ordered to refrain from taking industrial action on 27 June 2012; 2. The New South Wales Teachers' Federation and its officers are hereby directed to take all reasonable steps to ensure that members of the New South Wales Teachers' Federation comply with Order 1, including notifying its members of these orders by posting the Orders in a prominent position on its website no later than 3pm on Monday 25 June 2012; 3. These Orders and Directions shall take effect immediately and shall remain in force until 31 December 2012. Contravention admitted 3The Federation has admitted that on 27 June 2012 it took industrial action in contravention of Order 1. The evidence also supports a finding of a contravention. Accordingly, I find the contravention occurred. It remains to be determined what should be done in relation to the contravention having regard to s 139(3) of the Industrial Relations Act 1996, which provides: (3) The Commission may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following: (a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention, (b) cancel the approval of an enterprise agreement, (c) suspend or modify for any period all or any of the entitlements under an industrial instrument, (d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5, (e) impose a penalty on an industrial organisation or an employer as provided by subsection (4), (f) make any other determination that the Commission considers would help in resolving the industrial dispute. Maximum penalty 4The Department has sought the imposition of a penalty under s 139(3)(e) of the Act. There has been no suggestion any other available sanction should be imposed. Accordingly, This decision concerns penalty. Given that a penalty has previously been imposed on the Federation for a contravention of an earlier dispute order the penalty that may be imposed is one not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues: s 139(4)(b). The contravention occurred on only one day. The prosecutor has called for the maximum penalty of $20,000 to be imposed on the Federation. Principles to be applied 5As it was recently noted in Fire and Rescue NSW on behalf of Department of Premier and Cabinet v New South Wales Fire Brigade Employees' Union [2012] NSWIRComm 76 at [23] ("Fire and Rescue") the law regarding the imposition of penalties under s 139 is reasonably well settled. Reference was made to the decision in Bluescope Steel (AIS) Ltd v AWU and Anor (No 2) [2005] NSWIRComm 210 at [37] ("Bluescope (No 2)") where the Court identified a list of matters that may be relevant in respect of contraventions of dispute orders under s 139 where the conduct constituting a contravention called for the imposition of a penalty under s 139(3)(e). In the Court's opinion, the matters that may be considered to be relevant and appropriate were: (a) The circumstances in which the relevant contravention took place (including whether the contravention was undertaken in deliberate defiance or disregard of the dispute order); (b) Whether the person found to have been in contravention of a dispute order has previously been found to have engaged in conduct in contravention of an earlier dispute order (in this respect see s 139(4)(b), which provides for higher maximum penalties where there has been an earlier contravention); (c) The consequences of the conduct found to be in contravention of the dispute order; (d) The need, in the circumstances, for deterrence; (e) Any relevant subjective factors including undertakings regarding future conduct. 6In Fire and Rescue at [25]-[27], the Court referred to a series of decisions involving contraventions of dispute orders by the Teachers Federation: Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 ("Teachers (No 1)"); Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 ("Teachers (No 2)"); Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58 ("Teachers (No 3)"). Relevantly the Court stated: [25] .... In Teachers (No 1) Staff J adopted what the Court had said in Bluescope (No 2). In Teachers (No 1) Staff J added at [36]-[37]: [36] In exercising the discretion as to an appropriate penalty under s 139(3)(e) of the Act, it is necessary for the Court to consider the overall culpability of the guilty person, whilst noting that the imposition of a penalty under s 139 is not an application of the criminal law: see BHP Steel Ltd v The Australian Workers' Union, New South Wales (at [94] - [99]). Regard must also be had to the fact that the legislature has provided for a higher maximum penalty for the first day of the contravention and a lower penalty for each subsequent day the contravention occurs. [37] In my view, contrary to the Federation's submissions, this is plainly a serious offence. In deciding what approach to take in the fixing of a penalty, I take into account the following: (a) the circumstances in which the contravention took place must result in a conclusion that the contravention was undertaken in blatant and deliberate defiance of the dispute order made by Boland J. The executive of the Federation took a conscious decision in the face of the dispute orders to proceed with "a 24 hour stoppage of all TAFE members on Thursday 11 February 2010"; (b) the contravention of the dispute order resulted in approximately 4,000 employees of the Managing Director of TAFE taking 24 hour strike action; (c) the inconvenience to students through the cancellation of classes; (d) that it is absurd to contend that a financial benefit was obtained by TAFE from the illegal strike action because of the savings in the salaries of teachers who took industrial action; (e) the observations of Boland J that the industrial action planned by the Federation was entirely without justification (at [20]); (f) that the making of a dispute order is a serious step given the consequences for contravention and persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation: see observations of Boland J (at [26]); (g) the failure of the Federation to apologise to the Court for the breach and to make a public declaration of belief in, and a willingness to uphold the integrity of the Commission: Director-General, Department of Education and Training v New South Wales Teachers' Federation (at [8] - [9]). To the extent that the Federation submitted that its contrition should be taken to have included such factors, I am not prepared to interpret the Federation's contrition as embracing such broad terms; (h) that there was no evidence, nor could there have been, that the Federation had been labouring under a misapprehension as to the scope of the dispute orders; (i) that the Federation committed a single breach of the dispute order. [26] In Teachers (No 2) Marks J, after referring to Teachers (No 1), stated: [14] However, it is also necessary to make reference to one additional matter, namely the context in which dispute orders are made and the part that dispute orders play in the overall regulation of industrial matters in New South Wales. Chapter 3 of the Industrial Relations Act deals with industrial disputes and provides for mandatory conciliation and then arbitration. There is provision in the Act for the enforcement of awards and determinations made by the industrial tribunal. Furthermore, the tribunal is empowered to make dispute orders (s 136) of a kind described in s 137 and subject to conditions set out in s 138. Section 139 empowers this Court to impose a penalty for breach of a dispute order. Accordingly, the regulation of industrial disputes in New South Wales involves the empowerment of a third party umpire to make binding orders on parties which can be enforced through mechanisms established by the State and which include the creation of civil penalties as part of the armoury of measures that may be taken to ensure compliance with and enforcement of awards, orders and determinations. [15] The existence of a system such as that established by the Industrial Relations Act 1996 reflects a sophisticated and civilised approach to dealing with industrial disputation, including differences of opinion which do not necessarily manifest themselves in any industrial action. In any sophisticated and civilised regime that regulates the manner in which persons, and entities that represent them, conduct their affairs, it is necessary to provide an overarching structure to ensure that the regime works in practice. Without such an overarching structure, there would be no means of compelling obedience to authority and this would lead to anarchy. So that any teacher who might read this judgment may fully understand the situation to which I am referring, the need for a hierarchical structure of authority, and means of implementing it, is replicated in TAFE and school campuses. [27] In Teachers (No 3) Haylen J referred to Teachers (No 1) and Teachers (No 2). In respect of the latter case, Haylen J distinguished the factual situation that there existed from the circumstances his Honour was required to deal with: [35] The present case is distinctly different. As indicated by Marks J in the compulsory conferences held on 5 and 6 September 2011, the underlying issue was not an industrial matter which the Commission had jurisdiction to entertain or in relation to which it could make an order or award. His Honour pointed out that, in the normal case, he would not hesitate to give a direction or a Recommendation that no industrial action take place and would then attempt to conciliate the matter and if conciliation was unsuccessful, the matter would be open to arbitration. This was not such a case and there was nothing that Marks J could do to influence the Federation from taking industrial action by joining Unions NSW and other public sector unions in their protest rally against Government industrial policy and amendments made to the Industrial Relations Act. Because the Commission lacked jurisdiction, there could be no serious challenge to its authority by the Federation rejecting any recommendation or direction regarding this industrial action: indeed, Marks J made neither a recommendation nor gave a directions regarding the strike. Although his Honour issued a certificate of failed conciliation at the request of the Director-General, he accepted that he had not undertaken conciliation in the usual manner when dealing with an industrial matter otherwise within jurisdiction. He concluded the dispute proceedings by indicating that he would not relist the matter again unless the parties required assistance with a matter within the jurisdiction and power of the Commission and that might be made by way of a fresh notice of dispute. ... [40] Having regard to the circumstances surrounding the lateness of the application and the period of notice given by the Federation, the Court is unable to conclude that these breaches are of the same order of seriousness as the previous two breaches by the Federation. This industrial action involved protest rallies against Government policy, not open to arbitration: the rally itself was supported by all public sector unions under the auspices of Unions NSW, the State peak council for employees under s 215 of the Act. Further, it is appropriate that the penalty for each day encompass the entirety of the actions taken by the Federation in breach of the dispute order - this approach appears to reflect the structure of s 139. 7The decisions in Teachers (No1), (No 2) and (No 3) are instructive in determining an appropriate penalty in the present case. Moreover, I propose to adopt what was said in Bluescope (No 2) as to the matters that are relevant in determining penalty. Circumstances in which contravention took place 8In March 2012, the New South Wales Government issued a press release announcing "the most significant and far reaching reforms to school education in New South Wales in a century." The Premier said: Our Local Schools, Local Decisions policy is a roadmap for change. It sets out how we will, over time, give our schools more control over local decisions. 9The key features of the policy were identified as follows: The shift in decision making responsibility from head office to school level The management of school budgets by school principals (including staffing and non-staffing resources) Schools will manage more than 70% of the total public school education budget A new resource allocation model will fund schools directly and funding will reflect complexity as well as student numbers Schools will determine the number of temporary and permanent staff within their budgets and principals will have an increased say in filling vacancies in their schools Salary progression will be based on attainment of professional standards Improved processes will be introduced to deal with underperformance Principal salary and classification will be linked to school complexity, not just student numbers Principals will be free to make more local decisions for purchases up to $5000 One school plan, one annual report and one budget all linked to student learning outcomes. 10The announcement was met with deep concern by the Federation, which expressed strong opposition to aspects of what was being referred to as the "Local Schools, Local Decisions" policy ("LSLD policy"), including a failure by the government to consult with the Federation on the formulation and implementation of the policy. 11On 19 June 2012, the Federation wrote to the Minister for Education, the Hon Adrian Piccoli, MLA, regarding a charter that the Federation had called "Putting Students First Charter". In its letter the Federation indicated it "would like to see an end to the current uncertainty that besets our schools as a consequence of mooted changes to education policy and would like to work with you to construct a harmonious resolution of the issues." The Federation proposed that the Government enter into a charter of commitments with the following guarantees: "The NSW Government guarantees that for the life of our first term in government, when making any changes to the NSW education system, we will always put students first. In particular we guarantee: Class sizes will not be increased. Funds for public education will not be reduced in real terms. There will be no overall decrease in the level of permanent teaching positions. There will be no overall decrease in the level of school executive staffing. The current harmonious award system will be maintained. There will be no decrease in the level of specialised teaching positions in our schools. School executive structures will continue to be determined by curriculum need and the number of students at each school. Key decisions at the school level will be made cooperatively by principals, teachers and parents." 12The Federation said in the letter that it stood ready "at any time to negotiate a resolution consistent with such a charter." 13On the same day as sending the letter to the Minister, the Federation notified a dispute to the Commission pursuant to s 130 of the Act in relation to the Department's LSLD policy: Matter No IRC 694 of 2012. Also on the same day the Federation sent an email to members headed "URGENT: Executive endorses Industrial Action 27 June", which authorised Federation members in the Department's schools and the Officers Consultants and Advisers Association ("OCCA"), to take industrial action in the form of a 24 hour strike on 27 June 2012 in the absence of the Government giving the guarantees the Federation had sought in its letter to the Minister. 14On the following day, 20 June 2012, the Federation posted a notice on its website headed "Stop work meeting venues - 27 June, 2012". The notice included details of the 27 June 2012 stop work meetings and the meeting venues. Also on 20 June, the Director-General notified a dispute to the Commission pursuant to s 130 in relation to the Federation's industrial action proposed for 27 June 2012: Matter No IRC 697 of 2012. 15On 21 June 2012, Walton J convened a conciliation conference in both Matters 694 and 697 with both parties in attendance. The Federation outlined its concerns with the LSLD policy and identified the failure of the government to involve the Federation in a genuine and meaningful consultative process. The Federation acknowledged it had been included in certain consultative arrangements, but had been excluded from committees, such as the Steering Committee, that made the important decisions. The Federation advised his Honour that in earlier conciliation proceedings before Kavanagh J, her Honour had recommended to the Department that it consider including the Federation on relevant committees, including the Steering Committee, however the Department declined. 16Having heard the parties, and having engaged the parties in conciliation Walton J made a Recommendation pursuant to s 134 of the Act that the Executive Committee of the Federation reconsider its decision to embark on industrial action on 27 June, and that in lieu of industrial action the Federation submit to a process of conciliation and arbitration within the scope of the Act before the Commission by which issues regarding the LSLD policy could be ventilated. His Honour listed the matters again for 25 June to resume conciliation, subject to hearing a report from the Federation. The proceedings concluded shortly after 3.00 pm. 17At about 4.00 pm on 21 June, the Federation issued a further email to members authorising them to stop work for 24 hours and "to attend protest meetings across NSW, on Wednesday June 27th". 18On 22 June, the Minister for Education wrote to the Federation in response to the Federation's letter of 19 June. The letter was received only about 30 minutes prior to the known time for a meeting of the Federation's Executive. In his letter the Minister indicated he remained committed to an open dialogue with the Federation about how to "effectively implement the Government's Local Schools, Local Decisions initiative." The Minister referred to an earlier letter of 14 May 2012 to the Federation in which he said he had provided a response to "all of the questions posed in your letter of 3 May 2012..." and that he stood by the commitments he had made including: Funding to public education will not be reduced. The current class size policy as detailed in our staffing agreement will remain in place. Schools will have more opportunity to select the staffing mix that meets student needs. The statewide transfer system will be retained and incentive, nominated and service transfers remain a key component. Permanent teachers who are nominated for transfer will be appointed to a suitable vacancy. Mandatory hours of curriculum delivery will not change. The proposal for a new standards based remuneration structure for classroom teachers will be negotiated with the Federation. A new classification structure for principals that recognises school complexity and size will be discussed with the Federation and principal groups. 19It was said by the Federation that the Minister's response was really no response to its call for guarantees in its letter of 19 June. Moreover, whilst the Minister indicated, for example, that the current class size policy as detailed in the staffing agreement would remain in place, what the Minister did not mention was that the staffing agreement expires in September 2012. The Minister's response was described as a "clever political response". 20Late on 22 June the Federation advised the Department that the strike on 27 June would proceed. This was confirmed in an email to Federation members on 23 June 2012 headed "Minister fails to put students first - Wednesday protest still on". 21In the proceedings before Walton J on 25 June, the Federation conveyed to his Honour its Executive Committee's decision that the industrial action would proceed on 27 June 2012. On that basis, the Vice President adjourned Matter No 694 to an appropriate time. In relation to Matter No 697 his Honour issued a certificate of attempted conciliation pursuant to s 135(2) of the Act. Later in the day on 25 June Walton J made the dispute orders set out earlier in this decision. In doing so his Honour stated: [4] The factual underpinnings are reasonably clear and substantially uncontested. The Federation has confirmed by its Executive Committee its direction to its membership to undertake a 24 hour stop work meeting on Wednesday 27 June 2012. [5] Whatever the specific duration of that industrial action may be, it will necessarily have the effect of creating a significant disruption to the delivery of educational services to approximately 750,000 students in schools throughout New South Wales. [6] It should also be borne in mind that the industrial action comes, as it were, in the face of the Recommendation given by the Commission as presently constituted on Thursday 21 June 2012 in encouraging the Executive Committee of the Federation to cease the industrial action and to reconsider its position in that respect and in lieu thereof to submit itself to the processes of conciliation and arbitration before this Commission. ... [9] There is one other factual matter which I should allude to in the circumstances and that is the submission made by Mr Dawson regarding two recent communications between the respective industrial interests. [10] The first of those was annexed to the affidavit in the form of correspondence from Ms Jenny Diamond, General Secretary of the New South Wales Teachers' Federation, to the Minister for Education, the Honourable Adrian Piccoli MP dated 19 June 2012. The second was a communication in response forwarded by the same Minister to Ms Diamond shortly before the convening of the Executive Committee meeting of the Federation on Friday last (which correspondence is dated 22 June 2012). [11] I should indicate that I accept Mr Dawson's submission, in that respect, that the communication was late, having regard to the subject matter of the dispute, and, that it left many of the issues sought to be resolved by the Federation in such a state that they could have been reasonably taken by the Federation to have been either wholly or partially rejected out of hand or omitted from consideration. Those are the factual matters underpinning the determination which I shall make. ... [12] I propose to make the orders in their amended form sought by the Director-General. Plainly, in the circumstances of the delivery of this judgment in the manner that I have chosen to deliver it, the reasons given in relation to that decision must be necessarily attenuated. They may be stated as follows: 1. The industrial action will have significant adverse consequences for the delivery of educational services to a very large number of school students in this State. It will affect, on the evidence, some 2,200 schools and disrupt the affairs of not only those students but parents or care givers. It is, therefore, generally in the public interest that the orders should follow, particularly having regard to the limited scope of the orders which are presently proposed. 2. I am mindful of the fact that the Federation has now on two occasions rejected less significant measures adopted by the Commission to avert industrial action. In the first case directions given by Kavanagh J were not complied with and in the second case, and only very recently, the Recommendation made by myself was not accepted. I should not be taken by that reason to indicate that I consider the Executive Committee of the Federation did not bona fide consider the recent Recommendation but it must be taken as plain now that, in the absence of the making of orders against the Federation in the fashion proposed by the Director-General, any lesser form of control or sanction would not produce any alternative course of action. 3. I am also mindful of the difficulties the Federation has encountered in its negotiations to date with governmental interests over what is obviously a very significant reform to the school system in this State. I do not wish to suggest by that observation that the Department has not endeavoured to engage in a consultative process by which discussions would be held with the Federation over the various issues of concern, but that Minister's letter of 22 June would, as Mr Dawson put it, have enlivened concerns of the potentiality of, as I have described it, areas of trespass about which the Federation's entreaties might be rejected out of hand. However, that consideration, such as it may be, is rendered as having little potency in favour of the Federation's defence of this application in view of the stage of these proceedings had reached on the occasion of the making of my Recommendation of last week. Irrespective of the consultative arrangements, or their limitations, as they had applied to that date, it was clear by that time the opportunity for the Federation to ventilate the entirety of its concerns then existed by the utilisation of the provisions of the Industrial Relations Act in such a manner as would enable the speedy and comprehensive conciliation and, if necessary, arbitration of the subject matter of the dispute proceedings (which the Federation had itself filed in order to grapple with the subject issues). It seems to me that in those circumstances the Federation cannot reasonably avail itself of an argument based upon provocation deriving from the 22nd of June letter from the Minister. The argument might be finally tested in this way. Had the Federation not determined to have continued with the industrial action that it has decided to embark upon, then instead of the Commission being occupied in deliberations over an order to restrain that industrial action, it would now, that is at this very instant, be engaged in processes of conciliation directed to overcoming the stated Federation's concerns (as to consultation). This process would have derived from its very application by way of a dispute notification (which proceedings have now been stood over in the light of the industrial action taken). ... 22Later still on 25 June, an item headed "IRC Order and Directions" was posted on the Federation's website. The item contained the Commission's orders and directions. Also on that day, the Federation had posted a notice on its website headed "Protest action on Wednesday 27 June to go ahead". On 26 June, the Federation posted a notice on its website headed "Minister threatens funding and teaching jobs". In this notice the Federation urged members to support the proposed industrial action and to attend meetings organised at venues around the State. 23On 27 June, members of the Federation took industrial action by way of a 24-hour strike. The uncontested evidence in an affidavit of Mark Andrew Philip, the Department's Director, Industrial Relations, was that as a consequence of the strike: a) 312 schools were non-operational (no principal or teacher was on duty to supervise students); b) even though 1918 schools were operational, approximately 643,708, that is 86.23 % of students across the State were absent; and c) approximately 66.08% of schools teaching staff, that is approximately 35,639 employees were absent. 24What the Department has to gain from excluding the Federation from pivotal consultative processes regarding the formulation and implementation of its schools policies is difficult to understand. The Government will always have the last word on these policies, but one would have thought that considerable benefit might be derived from knowing, understanding and dealing with the Federation's position - whether or not that position is considered meritorious - rather than presenting it with a fait accompli and treating it as an outsider rather than an insider. The Federation does, after all, represent the teachers in this State and it would appear to have their overwhelming support. The Department is prepared to invite Principals' Associations onto key working groups, but not the Federation. 25That being said, the Federation wilfully contravened dispute orders of the Commission. The concern the Federation had about aspects of the government's LSLD policy, heralded as "the most significant and far reaching reforms to school education in New South Wales in a century" and the government's failure to adequately consult on the formulation of that policy with the organisation representing those who will be central to the policy's implementation, is understandable. However, having notified an industrial dispute to the Commission regarding the implementation of the policy and having been offered the opportunity of early conciliation and arbitration, the Federation proceeded with planned industrial action in open defiance of dispute orders. The Federation cannot have it both ways; it cannot seek the Commission's assistance to achieve relief from a policy it considers will be damaging to the education system, the teaching profession and students, and at the same time thumb its nose at recommendations and orders made by the Commission in the interests of achieving an orderly resolution process that avoids unnecessary disruption in schools. 26It may be accepted that there are significant limitations on the Commission's powers to make awards setting fair and reasonable conditions of employment for public sector employees: see s 146C of the Act and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011. But there are clearly matters in the LSLD policy amenable to the Commission's jurisdiction, yet the Federation was not prepared to at least explore those matters in conciliation and test the limit's of the jurisdiction, with the prospect of amending elements of the policy either through conciliation or arbitration. Thus, without waiting to see what might be possible in conciliation and arbitration in connection with such matters as consultation, staffing, salaries, classification structures and the like, the Federation opted for pre-emptive strike action, firstly against the specific recommendation of the Commission and secondly in the face of dispute orders. 27The circumstances of this contravention are quite different to that dealt with by Haylen J in Teachers (No 3). In those proceedings the underlying issue was not an industrial matter which the Commission had jurisdiction to entertain or in relation to which it could make an order or award. That is not the case here. There may be disputes of a purely political nature that arise that are not amenable to the Commission's jurisdiction because they do not involve an industrial matter. But the great majority of disputes between employers and employees have an industrial character. Whilst the present matter involves political elements it also has the requisite industrial character. As Marks J observed in Teachers (No 2) at [15], the Act "reflects a sophisticated and civilised approach to dealing with industrial disputation". The objective is make available an avenue for the "prompt and fair" resolution of disputes by conciliation and arbitration without the need to resort to the "rude and barbarous process of strike and lock-out." The system has worked for the last 110 years as well as, if not better than, any other system devised in the Australian context. The Federation's conduct is an aberration. 28One may conclude that given the circumstances in which the contravention took place it was a serious contravention undertaken in deliberate defiance of dispute orders. Whether there was a previous contravention 29The present contravention is the sixth by the Federation in 12 years. The first was dealt with in Director General, Department of Education and Training v New South Wales Teachers' Federation [2000] NSWIRComm 103. Marks J, having found the Federation had breached Dispute Orders concluded at [8], "the Respondent simply did not intend at any stage to comply with the Dispute Orders". His Honour found the contravention was both wilful and serious but was persuaded to dismiss the matter for two principal reasons: [9] The first and, in my view, the most significant is the apology made by the Respondent, the NSW Teachers' Federation and its declaration of belief in and willingness to uphold the integrity of the Industrial Relations Commission of New South Wales. Such a public acknowledgement and declaration should ensure that the NSW Teachers' Federation will not engage in any activity or conduct of any kind in the future which will lead it to contravene any orders of the Industrial Relations Commission of New South Wales. [10] The second matter is the fact that the Applicant Director General Department of Education and Training has supported the dismissal of the proceedings without the imposition of any penalty. 30The next five contraventions occurred in a space of less than three years: 10 November 2009 (see Teachers (No 2)); 11 February 2010 (see Teachers (No 1)); 15 July 2011 (see Teachers (No 3)); and 27 June 2012 (the present proceedings). A further contravention was recently dealt with by Backman J in Director General of Education and Communities v NSW Teachers Federation [2012] NSWIRComm 92, a judgment handed down on 24 August 2012 in respect of a contravention of dispute orders made by Kavanagh J on 12 December 2011. 31In Teachers (No 1) the Court imposed a penalty of $7,000 out of a maximum of $10,000. In Teachers (No 2) the Court imposed a penalty of $4,000 out of a maximum of $10,000. In Teachers (No 3) penalty of $4,000 (maximum $20,000) was imposed for the first day of the contravention and $2,000 (maximum $10,000) for the second day. As I earlier noted, the Court in that case was unable to conclude that the breaches were of the same order of seriousness as those in Teachers (No1) and Teachers (No 2). In the most recent judgment of Backman J, her Honour imposed a penalty of $12,500 out of a maximum of $20,000. 32In Teachers (No 1) the Court stated at [17]: As the evidence to which I have referred demonstrates, there was on the part of the respondent a deliberate and planned course of conduct leading up to the arranging and holding of the stop work meeting. That stop work meeting was undertaken in calculated disregard of the dispute orders issued by the Full Bench of the Commission. The circumstances in which that stop work meeting was conducted are indicative of an act of defiance in reaction to a decision of a Full Bench of the Commission. It is representative of a disregard for and dismissal of the authority of the New South Wales Industrial Relations Commission. 33In Teachers (No 2) the Court said at [51]: This finding must result in a further finding that the Federation wilfully disobeyed dispute order 1 made by his Honour and therefore the contravention is of a serious nature. The 24 hour strike was a protest stoppage, which had, as its aim, a desire by the Federation to overturn the decision of the Full Bench in arbitration proceedings. It follows that the contravention of dispute order 1 made by Boland J, was deliberate and premeditated. I noted earlier that the maximum penalty in this case is $20,000. 34In the most recent decision of Backman J her Honour noted at [33]: The propensity with which the respondent has contravened dispute orders, now on five separate occasions since 2000 (including four occasions since 2009), facilitates a conclusion that the respondent is not unlikely to commit a similar contravention in the future. Accordingly, weight must be attached to the application of specific deterrence in these proceedings. Consequences of the contravention conduct 35I referred earlier to the consequences of the contravention and the disruption it caused to student learning. One may also take judicial notice of the fact there would have been considerable inconvenience caused to the community, especially to working parents who would have had to either refrain from attending work to look after children, or obtain child care for the period of the school day. 36I have no doubt that a significant purpose of the strike was to draw the community's attention to the Federation's concerns with the LSLD policy. The evidence showed the Federation was pleased with what it described as "unprecedented media attention" and whilst sections of the community may have been sympathetic to the Federation's cause, that would have been cold comfort to parents struggling on the day to find child care. 37It may be, from the Federation's viewpoint, that the greatest and most immediate impact on community opinion can be achieved through strike action. Perhaps that is why in recent years the Federation has been so quick to resort to such tactics, although it carries the risk of putting the very people it is designed to influence, offside. However, resorting to industrial action that is massively disruptive is rarely defensible in a system that provides for conciliation and arbitration to be conducted of matters in dispute in a prompt and fair manner and with a minimum of legal technicality. Deterrence 38One of the purposes of punishment is to deter not only the offender, but also others who might consider breaking the law. Weight is to be given to general deterrence, which aims to discourage other potential offenders from committing the offence and specific deterrence, which aims to discourage the particular offender from committing the offence again. 39As I earlier intimated the incidence of breach of dispute orders under the New South Wales system is very low. Nevertheless, some weight must be given to the need for general deterrence because, despite recent criticism, it is generally accepted as being the main purpose of punishment. 40As for specific deterrence, the Federation is a repeat offender. It has been prepared to press ahead with industrial action despite dispute orders and in circumstances where its complaints could be dealt with by conciliation and arbitration. It has given no sign it will refrain in the future from contravening dispute orders. Specific deterrence must constitute a significant element of the penalty. Subjective factors 41The Federation has admitted the contravention and, consequently there is some utilitarian value to be taken into account because the prosecutor was not put to proof. I will discount the penalty appropriately for this factor. However, I do not accept the admission as an expression of remorse because the admission was made in the face of a very strong prosecution case. 42The Federation has been a registered organisation representing teachers for many years and its record for most of those years has been good. I have taken that fact into account. Since 2009, however, the Federation seems to have adopted a policy that industrial action should be the first resort and not the channels of dispute resolution readily available to it under the Act. The Commission is unable to accept that is a legitimate policy. 43I earlier referred to the Department's puzzling reluctance to involve the Federation in the more fundamental consultative processes associated with policymaking. However, in light of the opportunities that were available to the Federation to access conciliation and arbitration, I am unable to accept that reluctance - indeed, refusal - constituted such provocation that the industrial action should be excused or that the penalty should be significantly discounted. Conclusion 44The conduct engaged in by the Federation, its prior record of offences, its refusal to acknowledge its wrongdoing, its silence regarding future conduct and the other factors I have taken into account, weigh heavily in favour of a penalty at the high end of the range. Accordingly, I intend to impose a penalty of $17,500. Orders 45The Court makes the following orders: (1) The NSW Teachers Federation is guilty of contravening the dispute order made by Walton J, Vice President on 25 June 2012 in Matter No IRC 697 of 2012. (2) The NSW Teachers Federation is fined an amount of $17,500 in relation to the contravention that occurred on 27 June 2012. (3) The penalty imposed by order (2) hereof is payable within 28 days of the date of this judgment. ********** Amendments 28 August 2012 - Matter No 679 of 2012 incorrect and amended to 697 of 2012 Amended paragraphs: Coversheet Decision, para [21], para [45](1) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2012