Industrial Action — Teaching Service

Overview

On occasion, disputes may arise in the workplace that involve the taking of industrial action (for example strikes and stopwork action) by employees.

Where industrial action occurs at a school, the principal should ensure that the impact on educational programs is minimised. It is essential that:

• adequate supervision of students is provided
• school programs are maintained wherever possible
• the disruption to parents and students is kept to a minimum, and
• all staff on duty are able to perform their professional duties free from intimidation

For comprehensive policy and information concerning the management of industrial action in schools, refer to Managing Industrial Action in Schools which covers the following areas:

• notification to parents
• duty of care
• industrial action
• student dismissal
• reporting requirements

Related policies

• Grievances — Teaching Service
• Overpayments

Relevant legislation

• Delegations
• Industrial Agreements
• Industrial Awards
• Legislation — Employment Topics
• Ministerial Orders — Employment

Contact information

• Contact HR

Policy and Guidelines

Managing Industrial Action in Schools

These Guidelines (last updated 22 October 2018) contain the following chapters:

• Introduction
• Notification to parents
• Duty of care
• Student dismissal
• Industrial action
• Reporting requirements

Introduction

On occasion, a dispute may arise in the workplace that involves the taking of industrial action by employees.

Where industrial action occurs at a school, the principal should ensure that the impact on educational programs is minimised. It is essential that:

• adequate supervision of students is provided
• school programs are maintained wherever possible
• the disruption to parents and students is kept to a minimum, and
• all employees on duty are able to perform their professional duties free from intimidation

Principals are authorised to:

• make any special timetabling or other arrangements necessary for the day
• make any necessary and appropriate adjustments to class sizes and scheduled duties and extras provided that such adjustments are not in breach of any legislative or other employment obligations

In circumstances where there are insufficient teachers available for the duration of any stopwork action, casual relief teachers can be used to replace teachers absent on stopwork action (if employed by the school a casual relief teacher must be employed for a minimum period of 3 hours). The cost of employing casual relief teachers will be met by the Department.

Principals may seek the assistance of parents in the supervision of students during stopwork action or other bans. The normal legal liability protection granted to voluntary workers in schools will extend to parents used in a supervisory capacity.

It is inappropriate and unprofessional for employees to discuss the merits of an industrial dispute with students or to involve them in any way in a dispute (for example, the distribution of handbills). Failure to comply in this area may lead to disciplinary action being taken against the employees concerned.

Meetings of parents at the school are not to be used as forums for furthering the union's industrial campaign.

School equipment, stationery, staff members and students are not to be used for the preparation or dissemination of any material for industrial purposes.

Notification to parents

In the case of stopwork action, principals are required to notify parents no later than the day before the stopwork action is to take place informing them of the duration of the stopwork action and that appropriate supervision of students will be provided at the school for those who attend. In the event that students are to be dismissed, it is the responsibility of the principal to make appropriate arrangements for any students who attend in circumstances where parents are unable to provide adequate care at home.

Duty of care

In addition to their professional obligations, principals and teachers (or other employees who have students in their care) have a legal duty of care with regard to the physical wellbeing of students in their charge. For information in relation to the legal duty of care, refer to Duty of Care.

The engagement in industrial action of any form, type or duration does not absolve a principal or teacher (or other employees who have students in their care) from their obligations under that legal duty of care. Whether a duty of care is breached is a matter which depends upon the circumstances. Where any form of industrial action has the capacity to affect the safety and wellbeing of students, it is the responsibility of the principal and teachers (or other employees who have students in their care) to ensure that adequate and appropriate arrangements are made for students' care prior to the taking of that action. Principals and teachers (or other employees who have students in their care) cannot abdicate their responsibility by a decision to take industrial action.

Failure by a principal or teacher (or other employee who has students in their care) to ensure that adequate and appropriate arrangements are made for students' care may be considered as falling within the exceptional circumstances referred to in Personal Liability of School Employees. As a consequence, the legal indemnity that is normally given to employees may not be granted.

Principals should advise employees who take stopwork action that they should leave the school premises. While principals and teachers (or other employees who have students in their care) remain on the school premises, their normal duty of care and obligation to students applies.

Student dismissal

Principals are required to ensure that arrangements have been made for the maximum number of students (particularly students of compulsory school age) to attend school during any industrial action. The dismissal of students should only be considered where:

• alternative resources, including casual relief teachers and parental assistance, are not available
• the school is able to give parents notification the day before, that students will not be required to attend

When there has been no opportunity to inform parents, students are not to be dismissed from school or left unsupervised in classrooms or the school grounds.

Industrial action

Industrial action can take a variety of forms. For example, employees may take stopwork action (that is, refusing to attend or perform any work) or impose work bans or limitations (that is, refusing to perform particular duties or tasks). A protected action ballot to authorise the industrial action is required before protected industrial action can be taken.

Apart from any obligations contained in the Fair Work Act 2009, employees who intend to take industrial action are expected to notify the principal at least 48 hours prior to the scheduled industrial action.

Employees not participating in the industrial action should be allocated duties, as far as possible, on an equitable basis.

Stopwork action

In making arrangements for proposed stopwork action, principals should plan for as many students as possible to be in their school for the whole day, taking into account:

• the number of teachers who will be remaining on duty
• the availability of casual relief teachers who may be employed
• the availability of parent or carer assistance for supervision activities

Principals are responsible for ensuring that adequate supervision is provided. In circumstances where there are insufficient resources available for the duration of the stopwork action, the principal is to seek advice from the Regional Director.

Principals taking stopwork action

As senior teaching service employees, it is not expected that principals would take stopwork action.

However, where a principal intends to participate in stopwork action, the principal must notify the Regional Director at least 48 hours beforehand. This notification should include the name and classification of the person (who must be a person registered with the Victorian Institute of Teaching) who will have the responsibility for the operation of the school during the period of the stopwork. Should there be no suitable person available, the principal must notify the Regional Director of arrangements to be put in place for the safety and supervision of students.

Other forms of industrial action

Industrial action may take many forms including placing bans or limitations on undertaking particular duties or tasks. In this case the employee participating in the industrial action is expected to undertake all of their normal duties except those duties or tasks that are the subject of the protected industrial action.

Principals may make alternative arrangements to minimise the impact of industrial action on education programs provided that those arrangements are not contrary to Department policy.

Principals should not compromise Department policy or modify education programs only for the purpose of avoiding the imposition of a ban or limitation.

Recording absences due to industrial action

Principals are required to ensure that all absences due to industrial action are promptly processed on the payroll. Such absences do not count as service for any purpose.

Unprotected industrial action

Where an employee participates or intends to participate in industrial action that was not authorised through a protected action ballot, the principal should contact the Department’s Policy and Workplace Relations Branch on 03 7022 0013 for advice prior to taking any action in relation to that employee.

Reporting requirements

The principal is required to notify the Department immediately they become aware that any industrial action is to be taken.

Online notification forms are available on the Resources tab to report both stopwork action and any bans or limitations.

When completing the online notification form(s), principals should provide details of the dates, time and duration of the industrial action, the number of employees participating in the industrial action and the number of employees normally on duty. Principals must also provide a brief statement on the impact of the industrial action on the school, including how the students are to be supervised during any stopwork action. Wherever possible, estimates of the numbers involved should be provided 48 hours prior to the action, and confirmed numbers provided on the morning of the action.

The online reporting forms should be used for all industrial action, whether at a statewide, regional, district or school level.

Employees who refuse to accept any duties assigned by the principal will be considered to be on stopwork action and should be reported accordingly. Full details of any such refusal should be provided at the same time.

In addition a principal must notify the Regional Director where they are intending to take stopwork action or where a school is reporting that all students will be dismissed.

Resources

Procedures and forms

eduPay Absences User Guide — for information on processing absences on the payroll due to industrial action, available at eduPay User Guides (staff login required)

Information on current industrial action can be found on the Industrial Agreements page. Principals are requested to report the numbers of staff who have indicated their intention to participate in the industrial action, and the anticipated impact on school programs online at: https://www.eduweb.vic.gov.au/forms/stopwork