No Ticket, No Start---No More!

The Teachers' Association of Australia Story

Andrew Brideson

I would like to begin by painting a broad picture of teacher unions in Australia.

The following unions and associations are affiliates of the Independent Teachers Federation of Australia (ITFA):

  • Queensland Association of Teachers in Independent Schools, Union of Employees;
  • New South Wales Independent Teachers Association;
  • Association of Teachers in Independent Schools (S A.) Inc.;
  • Independent Schools Salaried Officers' Association of Western Australia, Industrial Union of Workers;
  • Independent Schools Staff Association (ACT);
  • Northern Territory Independent Schools Staff Association;
  • Victorian Association of Teachers in Independent Schools;
  • Staff Association Catholic Secondary Schools (Victoria);
  • Victorian Catholic Primary Staff Association;
  • Tasmanian Registered Teachers Association.

The following unions are affiliates of the Australian Teachers Federation (ATF):

  • Queensland Teachers' Union of Employees;
  • The State School Teachers' Union of Western Australia Incorporated;
  • Victorian Secondary Teachers' Association;
  • Technical Teachers Union of Victoria;
  • Victorian Teachers Union;
  • South Australian Institute of Teachers;
  • Tasmanian Teachers' Federation;
  • New South Wales Teachers' Federation;
  • The A.C.T. Teachers' Federation;
  • Northern Territory Teachers' Federation.

All of the Government unions are affiliated with the various State trades and labour councils as well as with the ACTU. The ITFA is also affiliated with the ACTU.

The majority of these unions could be described as political in nature, with a marked left-wing bias. They subscribe to the traditional ethos of the trade union movement and are not afraid to use strike action as an instrument of negotiation. They generally support the Australian Labor Party with both finances and personnel, particularly at election time. Their interests extend beyond teachers industrial matters into the broader social issues, such as the peace movement and disarmament, aboriginal land rights, gay rights, and selected international movements such as SWEEPY, the ANC, the Chilean Solidarity Movement, the Kanak peoples' struggle in New Caledonia---to name but a few.

Their educational objectives need to be closely scrutinised---they want to politicise schools through the curriculum, and they are generally opposed to examinations, assessment and competition between students. Teacher accountability has all but disappeared. They want to restrict choice of schooling and they promote equal outcomes for students and equal opportunity for teachers---but only for their members. They denounce apartheid in South Africa but practise it here in Australia against my members. They do not like opposition in any shape or form---they are monopolistic and totalitarian. In short, they want total control of the education system.

The executives of these unions appear to have much power and the ability to manipulate their vast membership. Their task is made easier in Queensland and New South Wales where teachers in both the government and non-government sectors cannot be employed unless they show proof of union membership. In Victoria this is not the case, but if the organisations with which I am associated---the Victorian Affiliated Teachers' Federation (VATF) and the Teachers' Association of Australia (TAA)--- were not in existence, I am sure this would be so. Hence 'No ticket, no start---not quite'.

As far as I know, VATF and TAA are the only teacher unions in Australia which could be described as moderate. (Our opponents label us right-wing, whatever that means.) VATF/TAA are anathema to the union movement, particularly to the education sector. We are seen as a splinter group set up to be divisive.

We believe strongly in Article 20 of the Universal Declaration of Human Rights which states that 'everyone has the right to freedom of peaceful assembly and association and that no one may be compelled to belong to an association'. We believe in the freedom of choice and pursuit of excellence by both teachers and students. We aim to raise the professional image of teachers. We believe in government funding of all schools. We think competition is healthy and a necessary ingredient for progress. We are concerned solely with educational issues.

We are non-party political---the constitutions of both VATF and TAA state that we cannot support nor receive support from, nor make donations to, any political party. The power of the organisation resides in the membership. There will be no strike action unless there is a two-thirds majority from a secret postal ballot. Any contentious issues are subjected to a secret postal ballot of members. In TAA's rules, even decisions made at a public meeting are then subjected to a secret postal ballot of all members.


Advent of Federal Unions

In 1929, four judges of the High Court, (Isaacs J. dissenting) ruled in the case of the Federated State School Teachers' Association of Australia v. The State of Victoria and others, that the educational activities of the States carried on under the appropriate statutes and statutory regulations of each State relating to education did not constitute an 'industry' within the meaning of Section 4 of the Conciliation and Arbitration Act 1904-28; that the occupation of the teachers so employed was not an 'industrial' occupation; and that the dispute which existed between the States and the teachers employed by them was therefore not an 'industrial dispute' within Section 51 (xxxv) of the Constitution.

On 9 June 1983, the Full Bench of the High Court made a unanimous decision which amounted to a reinterpretation of Section 4(1) of the Commonwealth Conciliation and Arbitration Act relating to the term 'industrial dispute'. The words 'industrial dispute' are not a technical or legal expression. They have to be given their popular meaning---what they convey to the man in the street. The 'industrial dispute' in question was one between an organisation of social workers (the Australian Social Welfare Union) and their employers, the Community Youth Support Scheme Committees, whose appeal against acceptance of a union log of claims apparently based on this long-standing decision of the High Court had been upheld by the Arbitration Commission.


Significance for VATF

Teacher unions including the VATF were not slow to arrive at the significance of this volte-face in High Court thinking. We sought legal advice as soon as the news reached us, and began making preparations to apply to the Federal Industrial Registrar for federal registration. This would entitle us, if successful, to seek an award before the Commonwealth Conciliation and Arbitration Commission in due course as well as give us the formal recognition by the State Government which we had sought since coming into existence in 1976.

Three new federal organisations came into being. The TAA was formed by VATF. The Independent Teachers Federation (ITF) was formed by ITFA and the Australian Teachers Union (ATU) was the alter ego of ATF. These organisations came into existence as it was easier to create new organisations with new sets of rules which complied with the 1904 Conciliation and Arbitration Act, than to adapt the constitutions of the existing organisations.

It is significant that TAA was the first applicant. Its application was lodged with the Industrial Registrar on 3 November 1983. It had taken us just a little more than 3 months to get our act together. ITF lodged its application on 7 February 1984 and ATU on 13 February 1984. It was significant because Section 142 of the Conciliation and Arbitration Act states 'That the Registrar shall ... refuse to register any association as an organisation if an organisation to which the members of the association might conveniently belong has already been registered'. As there were no other federally registered State organisations, Section 142 could not be used to knock TAA out. Regulation 117 states that applications for registration shall be dealt with as far as practicable in the order in which they are received.

As there were three applicants in a virgin field, the Registrar decided to hear them in tandem and give a decision at the completion of the hearings.


Recent High Court Decision

The road to registration of TAA has been long and tough. It has been a race for stayers. After 5 years and 3 months, TAA gained a landmark decision from the High Court on 7 February this year. The Court ordered that the decision of the Full Bench of the Conciliation and Arbitration Commission not to register TAA be overturned. It ruled that:

'Because the Act and the Regulations confer an entitlement to registration, qualified in the manner indicated, the Commissions task in exercising the power conferred by s.88F(4) of the Act was to determine whether the requirements for registration of TAA had been met. The Commission's wrong construction of the Act and the Regulations led it to believe that it had the quite different task of deciding whether in the circumstances it was desirable to allow the registration of TAA. In the result the Commission not only misunderstood the nature of its task, but it failed to perform the task which the Act and Regulations required. This amounted to a constructive failure to exercise jurisdiction.'

The implication of this decision is that we now return to the Commission for appeals against us to be heard and determined according to law. We have an enhanced chance of being successful. TAA received only limited press publicity regarding this decision. However, I refer to an article by Bronwyn Young in the Australian Financial Review (8 February 1989) entitled 'David beats Goliath'.


Legal History

In the early months following our application, some 220 individuals, unions and school employers, including every State Government, lodged formal objections with the Arbitration Commission. The non-government sector appellants included:

  • principals of Catholic and other Independent Schools;
  • the Association of heads of Independent Schools;
  • eight specified Independent Schools in the State of Victoria;
  • the Catholic Education Offices of the States of Victoria (and Catholic Schools), South Australia, Tasmania, Western Australia, Queensland and the Northern Territory.
  • the Catholic Education Office---Canberra/Goulburn;
  • the Associations of Independent Schools of Victoria and Western Australia; and
  • the South Australian Independent Schools Board.

Some objections were settled by negotiations which resulted in an exclusion clause, e.g. relating to nurses, clerical workers, kindergarten teachers and public servants) being inserted into the TAA constitution. People whom we thought would support us and ought to support us made it known that they would pursue TAA to the end by financially draining our resources. The odds were really stacked against us. We were new and perhaps naive. We were small with only 300 members at the time the application was made. We lacked support and we lacked finance, but we believed in what we were doing.


Chronology

I draw attention to the Chronology of Events appended to my paper and will only highlight significant matters here.

On 13 July 1984, the Registrar determined that Rule 5 of TAA specified an industry in or in connection with which the application could obtain registration under the Act. On I July 1985, the Queensland Government, along with other States and employer organisations, appealed to the Full Court of the High court (there was one vacant seat) the Registrar's decision maintaining that school teaching was not an industry and therefore all applicant unions were not capable of being registered. On 10 June 1986---almost 12 months later---the High court announced that teaching was deemed to be an industry and that all 3 applicant associations were registrable.

On 2 September 1986, the Registrar dismissed technical objections against TAA's rules. This meant that TAA's rules complied with the prescribed conditions set out in the Act.

On 17 December 1986, after some 17 days of hearings in which we were represented by a Q.C., a Junior Barrister and a Solicitor, the Registrar stated that he would not refuse to register the TAA. This decision sent shock waves through our opponents. We knew it was only a matter of time before that decision would be appealed.

On 10 August 1987, the appeals commenced and lasted for 20 days. On 25 March 1988, the Full Bench of the Australian Commission---consisting of Justice Coldham, Deputy President Hancock and Commissioner Smith---allowed the appeals and overturned the Registrar's Decision of 17 December 1986.

TAA's only option if it was to stay in the hunt was to appeal to the High Court. This could only be done on legal grounds. That case, as has previously been mentioned is now history. Interspersed between these dates were appeals concerning Section 134, (Alterations to Rules), with different unions being brought in at strategic times to lodge further objections.

Since lodging TAA's application, over 70 days of court hearings have taken place. The number of days for preparation and research for these hearings could be at least double that. The cost of these proceedings has meant that publicity and marketing have had to take a back seat. The press have not been particularly interested in this saga. The major daily newspapers have all but ignored TAA.

Besides these federal proceedings, VATF has been actively protecting its interests in the courts in Victoria. Briefly, it has been involved with the Teaching Service Conciliation and Arbitration Commission. It has taken action in the Supreme Court against this Commission and was successful in a subsequent Full Court Appeal. Parliament subsequently abolished this specialist Commission and transferred Teacher Industrial Relations into the State Industrial Relations Commission. It has successfully conducted a case in the Supreme Court against the Government for being denied natural justice in relation to an Occupational Health and Safety application. It has been involved in the Industrial Relations Commission of Victoria to establish Conciliation and Arbitration Boards and is about to embark upon a recognition case. Perhaps these events can be retold at a future conference. It is not easy to establish a union. It may be a long time before another union in any industry---particularly In education---can gain federal registration. Under the new Industrial Relations Act, which is to operate from 1 March, it will be almost impossible. Future unions will have to have an initial membership of 1,000. Under the old Act under which TAA applied, only 100 members were the necessary requirement. It requires courage to take a stand against the Establishment: unions go to extreme lengths to stop poaching of their members. It also requires a lot of financial resources and human effort.

If ever there has been a union worth supporting in Australia---a union which could bring about a significant change in Australia's future through the next generation of Australian children---it is the Teachers' Association of Australia.



APPENDIX

TEACHERS' ASSOCIATION OF AUSTRALIA---Chronology of Events

August 1983 Initial idea of forming Federal union raised.
2 November 1983 Application to register TAA lodged with Industrial Registrar, Arbitration Commission, Melbourne
13 July 1984 After 6 hearing days the Industrial Registrar determines that TAA is capable of being registered within the industry of school teaching.
3 April 1985 Appeals by Queensland Government and non-government school sector against the 'Industry' determination dismissed by Full Bench of Arbitration Commission.
3 April 1985 Full Bench of Arbitration Commission determines that the ATU and ITF also registrable.
20 May 1985 The Queensland Government successfully lodges application in High Court to prohibit next stage of registration process from proceeding.
10 July 1985 In High Court in Brisbane, Queensland Government presents case why teacher organisations ought not to be registered federally. (Queensland Government maintains that school teaching is not an industry within meaning of Arbitration Act and therefore all applicant unions not capable of being registered. They further argue that education, and the administration of education, are domain of States and ought to be free from interference at federal level.) TAA participants in this case.
10 June 1986 Decision of High Court deems teaching an industry for purposes of Conciliation and Arbitration Act---that the 3 applicant teacher associations are registrable as organisations of employees in an industry.
2 September 1986 Industrial Registrar dismisses technical objections against TAA after 3 hearing days.
2 September--
10 October 1986
Appeals by ATU, ITF, Independent Schools' employer organisations and Catholic Education Offices in each State against TAA's application. Hearings last 17 days.
17 December 1986 Industrial Registrar states that he would refuse registration of TAA.
27 March 1987 Hearing for mention of technical objections and rule change appeals.
8 April 1987 Industrial Registrar refuses ATU (registered on February 4, 1987) to lodge an objection as registered organisation out of time.
29 April-1 May 1987 Objections to TAA rule changes by ATU and ITF.
11-12 May 1987 Boulton, J, hears application for leave to appeal against decision of Registrar made on 2 September 1987 by ITF and ATU.
15-18 May 1987 Objections by State Public Services Federation against TAA's rule change.
11 June 1987 Boulton, J. refuses ITF and ATU leave to appeal against technical objections.
11 June 1987 Boulton, J. refuses the ATU leave to appeal against the Registrar's Decision of 8 April.
20 July 1987 Industrial Registrar dismisses objection of ITF/ITFA relating to TAA rule changes. The ACT Teacher's Federation objection also dismissed. Grounds 1 and 2 of ATU objections dismissed but grounds 3 to 8 referred to Full Bench of Commission. Industrial Registrar suggests that TAA and State Public Services Federation try to agree on acceptable alterations to TAA eligibility rule.
4 August 1987 ATU appeals to Full Bench against Boulton J's Decision of June 11.
10 August--
22 December 1987
Appeals against Industrial Registrar's Decision of 17 December 1986 commenced. Full Bench consisting of Justice Coldham, Deputy President Hancock, Commissioner Smith. Hearing lasts 20 days.
12 August 1987 Full Bench dismisses appeal by ATU to lodge an objection out of time.
18 August 1987 TAA granted leave to appeal to Full High Court by single judge.
25 March 1988 Full Bench Decision allows appeals. Registrar's Decision of 17 December 1986 overturned.
7 October 1988 High Court hearing Canberra. TAA applies to have Decision of Arbitration Commission 25 March 1988 overturned.
7 February 1989 High Court quashes decision of Full Bench and orders Commission to rehear appeals in accordance with law.


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