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

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

The plaintiff seeks the following orders:

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

The short background is as follows:

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

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

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

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

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

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

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

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