Amery & Ors v State of New South Wales [2005] NSWIRComm 219 | Case summary

Amery & Ors v State of New South Wales [2005] NSWIRComm 219 | Case summary | Zoe

[16]

1 This matter relates to an application by the New South Wales Teachers Federation (the "Federation") under s 169(4) of the Industrial Relations Act 1996 (the "Act") to vary the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2001) 327 NSWIG 582 (the "2000 consent Award") to improve certain aspects of the 2000 consent Award as it applies to temporary school teachers ("TST") and casual school teachers ("CST"). 2 This matter also relates to an application to amend, in identical terms, the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (the "2004 Award"), which was made by the Full Bench on 9 June 2004 in Re Crown Employees (Teachers in Schools and TAFE and Related Employees') Salaries and Conditions Award (2004) 133 IR 254. This second application was made as the 2000 consent Award expired on 31 December 2003 and the provisions of the 2000 consent Award relevant to these proceedings were replicated, without change, in the 2004 Award. 3 The 2000 consent Award was rescinded and replaced by the 2004 Award. While the Federation's application relates to both the 2000 consent Award and the 2004 Award, given the lapse of time since the making of the applications, we intend to consider the application only in the context of the 2004 Award. 4 In essence, the applications seek to vary the awards to: · reduce the period of work that part-time casual school teachers must undertake before being classified as a temporary school teacher; and · ensure that temporary school teachers are subject to the same pay scale as permanent school teachers by recognising prior periods of non-permanent service (namely by removing the phase-in period agreed in the 2000 consent Award and replicated in the 2004 Award). 5 The applications were originally made under s 169(4) of the Act, which allows an award to be varied at any time by the Commission in order to remove any unlawful discrimination arising from the award. The applications have since been amended (leave to amend having been granted) such that they have also been made under s17(3)(c) of the Act and the Commission's wage fixing principles. Section 17(3)(c) allows an award to be varied during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so. 6 The key issues arising from the applications are:

whether the work of TSTs working part-time for more than eight weeks is the same as and/or is equal or comparable to that of permanent teachers such that the current definition of a TST is discriminatory, or otherwise unreasonable, given the condition as to length of work as a casual school teacher before qualifying as a TST, namely a part-time casual school teacher must work in one engagement for two terms or more before falling within the definition of TST; and
whether the current pay scale system as it applies to TSTs is discriminatory, or unreasonable, as prior non-permanent service of a teacher is not taken into account when determining the level at which the TST commences beyond Step 9 as at January 2001. 7 For the most part, this matter has proceeded concurrently with proceedings before the Anti-Discrimination Tribunal (the "Tribunal") (and appeals therefrom) which deal with issues relevant to the present applications. Those proceedings are presently the subject of a final appeal to the High Court (leave to appeal having been granted by the High Court in State of New South Wales v Amery & Ors No S487 of 2004) following the decision of the New South Wales Court of Appeal in Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404. 8 It is helpful to outline the history of this matter and the parallel proceedings before turning to consider the detail of the present applications. History of present proceedings

[17]

9 The application to vary the 2000 consent Award was filed by the Federation in 2001 and arose from a determination of the Tribunal on 12 March 2001 in Amery & Ors v The State of New South Wales [2001] NSWADT 37. The basis of the Federation's application was that the Tribunal found in Amery that unlawful discrimination arose from provisions contained in the Teachers and Related Employees Enterprise Agreement made under the Industrial Relations Act 1991 and the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award published on 13 December 1996 (275 IG 1424), which preceded the 2000 consent Award, and that as a result of this finding certain provisions in the 2004 Award should be varied to take account of the identified unlawful discrimination. 10 The application was opposed by the Director-General of the Department of Education (the "Department") and the Managing Director, TAFE New South Wales (together the "respondents"). The proceedings initially came before Schmidt J and were then referred to a Full Bench pursuant to s 193 of the Act. The respondents then sought an order to have the proceedings dismissed or stayed, which was opposed by the Federation. 11 The Full Bench handed down its decision in respect of that application on 28 June 2002 in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 ("Re Crown Employees No 1"). 12 In support of its application, the respondent contended that:

an estoppel had arisen between the parties as the result of the conduct by the Federation and the agreement reached between the parties in the proceedings before the Full Bench which gave rise to the Award that the subject matter of the proceedings would be dealt with after expiry of the award and this precluded the Federation now seeking a variation to the Award;
the application was flawed in that it was based on a limited power to vary awards contained within s 169(4) of the Act (however, the respondent conceded that should the Commission find there was unlawful discrimination as contemplated by s 169(4) of the Act within the Award, any estoppel could be overcome by the requirements of the statute). 13 The respondent did not rely on the "no extra claims" provision within the 2000 consent Award. 14 The Full Bench rejected the respondent's application for the dismissal or stay of proceedings. In reaching this conclusion, the Full Bench concluded at [48] to [52]: In considering this discretion under s 169(4), it is necessary for the Commission to have regard to all the circumstances of the case. An important consideration to which the Commission would have regard is the conduct of the parties to the making of the award and the general policy reflected in s 16 and s 17 of the Act that awards once made should generally be permitted to run their term. It will be particularly relevant to have regard to whether the award sought to be varied was made as the result of an application which proceeded before the Commission by consent. We would concur with the observations of Wright J, President in Re Corrections Health Nurses (State) Award (1999) 90 IR 235 that it is "essential" for the proper operation of the Commission's functions in award making, and in particular the wage fixing principles, for the Commission to "ensure … the strict observance of agreements and undertakings given by parties".

[21]

In all the circumstances, we dismiss the motion by the respondent, save that the conditions of any applicable "no extra claims" provision shall apply to the extent of precluding any decision on the Federation's application prior to the expiry of the period specified in that provision. 15 In relation to the respondent's submission relating to the estoppel arising between the parties, the Full Bench noted at [37]: Whilst we do not express any final view on the applicability of the doctrine of estoppel in the more strict sense in the context of arbitral proceedings setting conditions in an industrial instrument, we would consider that the history of the proceedings would be of particular importance to the exercise of the discretion vested in the Commission to re-open and vary an award, be it pursuant to s 17 of the Act or otherwise. 16 The Federation's application then proceeded according to directions issued with evidence taken before Bishop C, on delegation from the Full Bench, over seven days in July 2003. The transcript of the proceedings and Exhibits in Amery also formed part of the evidence before Bishop C. 17 Subsequent to the hearing of this evidence, the Full Bench reserved its decision in this matter until the outcome of the appeal to the Court of Appeal in Amery was known (Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salary and Conditions Award [2003] NSWIRComm 481). The Full Bench determined at [12]: Under the changed basis upon which this matter is brought, and after reviewing the submissions and evidence in these proceedings, we consider that there is the potential for issues or findings in this matter intersecting with findings made in the primary proceedings. We consider, in those circumstances, that this matter should give way, at this stage, to those other proceedings so as to enable us to have regard to any findings that may be there made. We acknowledge, however, that ultimately this matter will be determined on the evidence before us. 18 Before considering the present applications and recent submissions, it is instructive to briefly outline the various proceedings in Amery. Amery

[22]

19 Amery relates to a number of proceedings initiated on 27 November 1995 by casual school teachers in the Tribunal under s 24 and s 25 of the Anti-Discrimination Act 1977 (the "ADA") alleging that the terms and conditions of their employment were discriminatory on the basis of gender. The applicant teachers were all female school teachers who were or had been employed on a casual basis by the Department and had all reached the top of the pay scale for casual teachers. Relevantly for the purposes of Amery, the pay scales were, between December 1993 and 27 August 1996 governed by the Teachers and Related Employees Enterprise Agreement made under the Industrial Relations Act 1991 and since 27 August 1996, by the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award made under the Act (the "1996 Award"). 20 Each of the applicant teachers brought a claim for damages claiming the difference between the salary they earned as casual teachers and the salary they say they should have been paid but for the discriminatory conduct. Each claim was for the period that commenced on 8 August 1994, which was the date on which s 54 of the ADA was amended to remove reliance on an industrial award or agreement as a defence to a claim of unlawful discrimination. Their claims related to work of a continuous period of at least eight week blocks per term. The relevant provision of the ADA under which the claims were brought was s 24(1)(b), which relevantly provides: 24(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex ... the perpetrator: (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex ... comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 21 The facts and the basis of the applications were outlined by the Tribunal as follows (at [39] - [40]): Turning now to the detail of the evidence of work value in the cases before us in this inquiry, it is necessary to consider the position of each claimant before any particular claim can be substantiated. At the outset however it is helpful to review the general nature of the case presented by each complainant. Each of the complainants have had families and several still manage families with young children. Each is a professional teacher who has dedicated her professional career to teaching in NSW schools, and preferably the State system. One of the complainants has now left the State system for the independent school system but has expressed the preference for permanent employment in the State system. Except for two of the complainants, all were permanent staff of the NSW Teaching Service before resigning in order to rear children or for family reasons. In each case, after attending to the family responsibilities, the complainants have sought to return to their profession in the NSW Teaching Service. To that end each has reapplied for employment, and some for permanent status. Each of the women was paid at the top of the casual pay scale as at 8 August 1994 when the Anti-Discrimination Act 1977 commenced to operate in the industrial arena. That is, they had graduated to level 5 in the casual scale; the equivalent of level 8 of the permanent scale. Of course, throughout the period from August 1994 to date, they have not progressed past the top of casual scale levels provided for in the enterprise agreement and the award. For all of the complainants who had, before ceasing work for family reasons, been permanents, payment at this level meant a decrease from that which they received when they were in permanent employment in the Teaching Service. Each of the women has throughout the period of the claim (8 August 1994 to date) worked continuously for periods of eight weeks or more at the schools to which they have been appointed, by the Teaching Service. It is important to note that the resolution of the present matter does not depend upon an assertion that the women have been discriminated against because their applications for permanency have been refused. Were that the position, it would be relevant, as Mr Menzies for the respondent submitted, that many of the complainants in seeking to review their professional careers, placed territorial limits upon their place of work for family reasons. The gravamen of the case is an assertion that the work performed by the women is of no less equal value that the work they had performed as permanent staff (in most cases), and of no less equal value than the work of comparable professionals in the same service who have throughout the period of the claim been permanent staff. 22 The Full Bench in Re Crown Employees No 1 noted as follows in relation to the application before the Tribunal in Amery (at [9] - [11]): The Federation contended that the practice of restricting casual pay scales to level 8 of the permanent scale resulted in casual employees being underpaid, having regard to the duties which they performed and their seniority in employment. It was further contended that the policy was discriminatory because it operated harshly in the case of women teachers as it effectively precluded them from achieving permanent status due to the limitations on travel and career that family responsibilities entail.

[23]

The Tribunal considered that the different pay structures for casuals and permanent employees gave rise to a "condition or requirement" within the meaning of s 24(1)(b) of the Anti-Discrimination Act and it was this condition or requirement that was "a prerequisite for winning access to the higher salary scales under the award and the enterprise agreement". The Tribunal considered, on the evidence before it, that it was easier for men to comply with that condition " presumably because men are more able to move to take up permanent positions than women" and that on the evidence before it, it was appropriate to make a finding that "'a substantially higher proportion' of men 'comply or are able to comply' with the requirement or condition … than women". Finally, in accordance with s 24(1)(b), the Tribunal considered whether this condition or requirement was reasonable. The Tribunal approached this consideration in this way (at [19]): There was no evidence before the Tribunal to indicate that financial or economic considerations, such as might be relevant to budgetary appropriation by the Parliament explained the difference in treatment of men and women teachers or that the budget would be adversely affected by a conclusion that the condition or requirement is unlawful. Nor was it submitted that the condition was reasonable because it might discriminate against some men, or that it was desirable because it might tend to attract men to the Teaching Service. It was however submitted by the respondent that the Education Teaching Service in NSW would be adversely affected if the condition were removed because the State would be unable to provide "continuity of teaching services and staffing flexibility". It was suggested that a ready supply of casual, including long term casual, relief teachers was vital to the continuation of the current standards and high levels of teaching in State public schools. However, the question before us in our view is not whether the whole system of casual staffing arrangements is beneficial for the Teaching Service, but whether it is unreasonable to pay female teachers at a lower salary scale if they perform work of equivalent standard and value to permanent staff with access to permanent pay scales. In short if there is no sensible factor to explain the difference in treatment other than the policy itself then a significant question must arise as to its reasonableness if left unexplained. The Tribunal found, on the evidence before it, that "the work of supply casuals in general, is of equal value to permanent staff, at least with respect to claimants in the category of teachers who are engaged to work continuous periods of eight week blocks or more per term and who do that work". The Tribunal then considered the case of each applicant individually. 23 In summary, the key findings of the Tribunal in its decision (which was handed down on 12 March 2001) were:

The requirement that a casual teacher, if they were to be entitled to the higher increments in the salary scale available to permanent teachers, was to have permanent status was a "requirement or condition" for the purposes of s 24(1)(b) of the ADA.
A substantially higher proportion of men comply or are able to comply with this requirement or condition.
Based on the evidence before the Tribunal, the work of supply casuals in general (that, casual teachers whose work comprised a continuous period of at least eight week blocks per term) was of equal value to that of permanent teachers. The previous decision of the Commission in 1983 did not determine adversely to the complainants' case that the work of supply casuals is not work of equal value to permanent staff. The tenor of the factual conclusions are to a contrary effect and tend to support the present complainants.
In all the circumstances, the condition that if they were to be entitled to the higher increments in the salary scale available to permanent teachers they were required to hold appointments as permanent teachers notwithstanding that as casual teachers they did work of equal value was not reasonable.
The requirement was also one with which each applicant does not or is not able to comply.
This finding was not altered by the fact that the applicants had placed geographical restrictions on their acceptance of permanent appointments.
The Tribunal was not deterred from making its findings in view of the previous considerations by the Commission in the context of the 1996 Award. 24 The oral evidence presented to the Tribunal consisted of testimony from each of the 13 applicant teachers and testimony led by the Department as to reasons for the differences in treatment of casual and permanent teachers, including by administrators and school principals. 25 The State of New South Wales then appealed against the Tribunal's decision and the Appeal Panel of the Tribunal delivered its decision on 12 June 2003 in State of New South Wales v Amery (2003) NSWADTAP 16. The Appeal Panel allowed the appeal and the complaints of indirect discrimination were dismissed. 26 The Appeal Panel dismissed grounds of appeal dealing with the statutory construction of s 24 and the interpretation of permanency as a "requirement or condition". 27 However, in dealing with the issue of whether the requirement or condition of permanency was "a requirement which is not reasonable having regard to the circumstances of the case" the Appeal Panel said (at [50] - [54]): Furthermore, nowhere in the course of the Tribunal's treatment of the issue of reasonableness does the Tribunal engage in the exercise of weighing the nature and extent of the discriminatory effect on the complainants against the reasons advanced in favour of the requirement or condition. The Tribunal does discuss "the general nature of the case presented by the complainants" (para 39) in the context of the debate about work value and the Tribunal also refers to the circumstances under which the complainants surrendered their former permanent status (that is, because of their desire to raise children) and which now "limit" their access to permanency (at para 46). Otherwise, the Tribunal is preoccupied with the rejection of reasons advances in favour of the requirement or condition. Specifically, the Tribunal rejects the fact that the complainants themselves limited the basis upon which they would accept permanency, as relevant to the determination of the reasonableness of the requirement. (See para 40, where the Tribunal discounted as irrelevant the fact that "many of the complainants in seeking to review their professional careers, placed territorial limits upon their place of work for family reasons".) The obligation upon the Tribunal to examine the nature and extent of the discriminatory effect of the requirement on the complainants called for an assessment of how and to what extent the requirement impacted upon the complainants. The subjective preference of each of the complainants was a relevant factor in this exercise. As the Tribunal itself recognised, it was not a case of the complainants being denied permanency; they could have permanency and thereby have access to the applicable pay scale, if they were prepared to accept teaching positions outside their nominated geographical areas. These errors on the part of the Tribunal call for a reappraisal of this element of the complainants' case. Before embarking on that exercise, it should be observed that the Panel is also persuaded that the Tribunal was influenced by considerations of alleged discriminatory practices as between permanent and casual supply teachers, arising out of the determination of the relevant Award in the NSW Industrial Commission, in determining whether the requirement was unreasonable (see paras 35, 36 and 58). That is not a form of discrimination which finds expression in the Act; see Waters at 365, 378, 383-384, 394-396, 409-410; Commonwealth v HREOC (1995) 63 FCR 74 at 96; 133 ALR 629. The evidence before the Tribunal established the nature of the extent of the discriminatory effect of the requirement on the complainants in the following way. With the exception of two complainants, all were formerly permanent teachers in the employ of the Appellant, but resigned in order to devote themselves entirely to the demands of raising a family. All of the complainants later sought to return to the teaching service and accordingly took up employment as supply casual teachers or long term casual teachers. As at the 8 August 1994 all of the complainants were being remunerated at the top of the casual pay scale, that is level 5, the equivalent of level 8 of the permanent pay scale. It is correct to observe, as did the Tribunal, that payment at level 5 of the causal pay scale represented a decrease in salary from that which the complainants had received whilst they were in permanent employment. However, the Tribunal went on to identify the nature and extent of the discriminatory effect of the requirement of permanency on the complainants by reference to the "assertion that the work performed by the women is of no less equal value than the work they had performed as permanent staff (in most cases) and of no less equal value than the work of comparable professionals in the same service who have throughout the period of the claim been permanent staff (see paragraph 40). In addressing the question of the nature and extent of the discriminatory effect as a work value issue the Tribunal misdirected itself and acted beyond jurisdiction. Whatever the anomalies and discrepancies inherent in the pay scales applying to casual and permanent staff, there was no basis upon which the Tribunal was entitled to consider that they were premised on gender. Rather they arose (if at all) as a result of a series of cases before the NSW Industrial Commission beginning in 1983. It is one thing to acknowledge the complainants' argument that these anomalies "map discriminatory gender divisions" (para 35), it is another thing entirely to adopt such an argument (as the Tribunal appears to have done) for the purposes of determining whether the requirement is unreasonable. Disregarding then, the analysis undertaken by the Tribunal as to the relative work value of casual compared to permanent teachers, it is necessary, in the context of the nature and extent of the discriminatory effect on each of the complainants, to examine the circumstances under which each complainant claimed that they were prevented from accessing the pay scale applicable to permanent teachers.

[24]

28 The Appeal Panel summarised the evidence before the Tribunal and went on to say at [57]: Against this background, there is much force in the Appellant's submission that the nature and extent of the discriminatory effect upon the complainants is the denial of permanency at locations and, in some cases, in subject areas, of their choosing. A consequence of that denial is that they remain on a pay scale which limits their remuneration, compared with permanent teachers, but that consequence has a rational and understandable basis, namely the relevant enterprise agreement and Award. That is, in the opinion of the Panel, a very important factor in determining whether the requirement of permanency is reasonable in all the circumstances: see Commonwealth Bank v HREOC at 34 per Sackville J. It is no part of the function of the Tribunal or this Panel to determine whether the NSW Industrial Commission was correct in determining the enterprise agreement and the Award; the fact that they govern the conditions of employment of permanent and casual teachers is what underpins the Appellant's treatment of the complainants. 29 The Appeal Panel found that the nature and discriminatory effect of the requirement of permanency on the complainants did not outweigh the reasons advanced by the appellant at first instance and thus "the complainant did not discharge the onus upon them to demonstrate the unreasonableness of the requirement in all the circumstances of the matter". 30 A "holding appeal" was lodged in the Court of Appeal against the Appeal Panel's decision and the Court of Appeal delivered its decision on 15 November 2004 (Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404). 31 The appeal was allowed on the basis generally that no errors of law had been made by the Tribunal. The Orders made by the Appeal Panel were set aside with 18 of the 20 Orders made by the Tribunal re-instated. 32 The Court of Appeal found in favour of the appellants on the proper construction of s 24(1)(b) of the ADA and against the Department on the basis of the statutory history of the section; the purpose of indirect discrimination provisions and the operation of s 24(1A). 33 Beazley JA traversed the legislative history of the section and concluded at [48]: I consider that there has been a drafting error in the introductory words of s 24(1), rather than a drafting omission in ss (1A). If that subsection was intended to apply to para. (b) as well as para. (a), the indirect discrimination provisions would be nullified. 49 When an error occurs such that words are used which have no meaning or negative the statutory purpose, it is both permissible and necessary for the court to omit the words from the section under consideration: Saraswati v. The Queen (1991) 172 CLR 1 especially per McHugh J at p.22. Accordingly, in my opinion, s 24 is properly construed so that the words "on the ground of the aggrieved person's sex" after the word "if" in the opening paragraph of ss (1) have no work to do or are mere surplusage in relation to para. (b). they should be ignored. 34 The Court of Appeal upheld the appellants' contention that the discriminatory conduct complained of did not arise from the imposition of a condition or the requirement to have permanent status and found the Appeal Panel misunderstood the appellants' case and therefore erred in law in determining the case on a basis never advanced before the Tribunal. 35 The Court observed in relation to the reasoning of the Appeal Panel at [57]: It is apparent from the passages that follow that the Appeal Panel accepted the Department's submission. In my opinion these passages do reveal a misunderstanding of the appellant's case. The Appeal Panel had already accepted the appellant's definition of the condition. The error in the Appeal Panel accepting the Department's submission would seem to be that the Appeal Panel then failed to keep at the forefront of its consideration the condition that the appellants alleged was not reasonable. The two passages quoted above can only be correct if the discrimination alleged was a failure to be given permanent status. That was never an issue. If it was, the limitation of the case to teachers who work in blocks of 8 consecutive weeks or more and the evidence in respect of equal work value would have been irrelevant. 36 The Court found the Appeal Panel made an error of law in finding that the Tribunal had misapplied the onus in determining the condition was not reasonable noting that at [71] - [72]: Senior Counsel for the Department submitted that it is erroneous in law to assume that a difference in treatment is per se discriminatory: Commonwealth Bank v. HREOC per Sackville J at 111, and that the Tribunal in this passage had made an assumption that the casual teachers' pay scale was discriminatory. Having made that assumption is was submitted that the Tribunal then reformulated the question in issue and did so erroneously. I do not agree. The Tribunal in my opinion was saying that, having considered the appellants' case that they performed work of equal value but were paid less because they were casuals, there was a question to be decided as to whether the requirement to have permanent status was not reasonable. It also indicated that it doubted whether the mere fact of existence of a policy to have casual teaching staff would be sufficient to answer that question in the Department's favour. The reasons for the policy would need to be examined. There was no error in that approach. The Tribunal was neither making an assumption nor asking the wrong question. It was expressing one part of its reasoning in the weighing up process in which it was required to engage. It was doing so in a context where it considered that unless sensible factors could be advanced to explain why teachers performing work of the same value were paid differently, there was a real question to be determined as to whether it was reasonable to do so. There was no error in reaching that position as part of its reasoning process, expressing its assessment at that point and then moving on to assess the factors advanced to justify the policy. The Tribunal did not, as the Department alleged, thereafter engage in the process of determining whether the Department was correct to impose the condition of "permanency" . 37 The Court then said at [73]: In this case, the appellants advanced a case that it was "not reasonable" for teachers performing work of equal value to be paid differential salaries depending upon whether they were classified as permanent or casual. The appellants had to prove as a fact that they were performing work of equal value. The Department advanced a case to establish the reasonableness of the salary differentiation. The Department's case also had to be evaluated. In evaluating that case, the Tribunal was required to make findings on the evidence presented. 38 On the issue of work value the Court held at [106] - [109]: The Department next advanced a number of submissions to the effect that, in focussing on work value, the tribunal's focus was on the wrong question. The Appeal Panel dealt with this at [AP.54]. It held that in addressing the question of the nature and extent of the discriminatory effect as a work value issue, the Tribunal misdirected itself and acted without jurisdiction. The Appeal Panel continued: "Whatsoever the anomalies and discrepancies inherent in the pay scales applying to casual and permanent staff, there was no basis upon which the Tribunal was entitled to consider that they were premised on gender. Rather they arose (if at all) as a result of a series of cases before the NSW Industrial Commission beginning in 1983. It is one thing to acknowledge the [appellants'] argument that these anomalies 'map discriminatory gender divisions' (para. 35), it is another thing entirely to adopt such an argument (as the Tribunal appears to have done) for the purposes of determining whether the requirement is unreasonable." A number of observations should be made about this passage. The Tribunal could only have misdirected itself if it asked itself the wrong question. The question of work value was pivotal to the way the appellants defined their case. It was the essence of the discriminatory effect alleged. In defining its case in this way, the appellants were required to prove, as a fact, that 8-week teaching blocks involved work of equal value to that performed by permanent teachers. The Tribunal found that this had been established and the Department has accepted that there was evidence available to the Tribunal to enable it to do so. That finding was not, of course, the end of the appellants' case. There were other elements of s 24(1)(b) that also had to be satisfied. However, the work value finding was the major factual circumstance raised on the appellants' case that had to be determined and evaluated. There was thus no focus on the wrong issue. The Appeal Panel also said that in taking the approach that it did, the Tribunal acted beyond jurisdiction. It seems that the Appeal Panel considered that the Tribunal embarked upon the determination of a matter that was solely within the jurisdiction of the Industrial Commissioner. It is difficult to understand why the Appeal Panel considered a jurisdictional question was involved. The Tribunal was not determining pay scales over which the Industrial Relations Commission exercises jurisdiction. Nor did the Tribunal consider, as the Appeal Panel seems to find, that the pay scales were premised on gender. But even if the Tribunal did find that to be the case, such a finding is not outside jurisdiction. It is a finding of fact on a matter in issue in the proceedings before it. It was permissible for the Tribunal to consider a case that the appellants were being paid less than permanent employees notwithstanding that their work was of equal value. That did not make the case a work value case for industrial purposes. The Tribunal was required to consider and determine that factual allegation as part of the consideration whether, if it was established, these appellants were discriminated against on the grounds of sex within the meaning of s. 4(1)(b). Nor is it an answer to a discriminatory condition to assert that a specialist tribunal established the parameters of the discrimination in an Award or by approving of an industrial agreement. That would have been an answer before the amendments to s 54 of the ADA in 1994. It is possible, of course, that there may be circumstances where the existence of an Award or industrial agreement is relevant to whether relief ought to be granted under the ADA. For example, if the question whether differential pay scales were discriminatory had been agitated before an industrial tribunal as part of a determination of an Award, there may be an abuse of process if complainants then sought to challenge the Award as discriminatory under the ADA. The abuse would arise because of the possibility of having inconsistent decisions operating within the same sphere. However, that is not the case here. The Award that determined the differential pay scales was made before the ADA came into operation. Although there have been subsequent awards and agreements, none have involved a consideration of the issue raised in this case. But in any event, the question for consideration here is whether the appellants have established each of the components of s 24(1)(b). 39 The Court also found that the Tribunal had not considered the issue of work value in an "impermissible context as contended by the Department", noting at [112]: In dealing with the issue in this case the Tribunal said: "35 ... The issues in this case arise out of the anomalies in pay scales between permanent and casual supply employees which, the [appellants] have argued, map discriminatory gender divisions. 36 It is only since 1994 that industrial awards and agreements in New South Wales have been required to comply with the Anti Discrimination Act 1977. It is in this context that the present inquiry occurs. The focus of our inquiry is not a specific industrial inquiry as to work value and continuity of employment, but raises the so-called 'wide sociological problems' referred to above, such as patterns of work participation in relation gender." At this point in its reasons the Tribunal was dealing with the Department's argument that the question of work value had been determined by the Industrial Commission in 1983 and that in subsequent negotiations and cases the Teachers Federation had not sought to break that nexus. However, as the Tribunal pointed out, the issue before it was different from the issues determined by the Commission. The Tribunal's reference to the "so-called 'wide sociological problems'" was no more than a statement of the context in which the claim for discrimination was made. The reference to these matters did not involve a consideration of impermissible extraneous factors. 40 The Court also considered the issue of the existence of a specialist industrial tribunal as follows at [116] to [122]: The question was raised whether, because underlying the appellants' claim were questions of work value and pay scales, and such matters are usually and better dealt with by the Industrial Relations Commission, the Tribunal should have found that the requirement of permanent status was not reasonable. It is relevant to this question that since the repeal of s 54(e) of the ADA in 1994, the Industrial Relations Commission must be satisfied that any Award it makes or agreement it approves, does not breach the ADA. Strictly, this question only arises if there is a basis for this Court to make a determination on the merits. However, I am prepared to proceed for the moment on the assumption that this Court is entitled to deal with the issue. There are a number of answers to this argument. The first is that it potentially entrenches the discriminatory nature of the condition. The appellants, as individuals, have no standing to bring a claim before the Industrial Relations Commission. Claims relating to conditions of employment must be brought by the representative body of the industry concerned: s 11(2) of the Industrial Relations Act 1996 . In this case, that is the Teachers Federation. The attitude of the Federation to bringing a claim of this nature is unknown. In addition, the Federation has a number of different interests to represent. Some of the interests may conflict. For example, permanent teachers may resist the bringing of a work value case on behalf of casual teachers. The Federation may feel the need to compromise aspects of a claim because of these conflicting interests. This may have occurred in the work value case run in 1983 before Bauer J and was a matter of comment by his Honour. There may be financial considerations that may influence the Federations' decision as to whether to bring forward such a case at any given time. But whatever be the position, the Industrial Relations Commission has not examined and determined the precise work value raised by the appellants here and has not determined a work value issue in relation to casual teachers since 1983. Thus, if the appellants were successful on every other basis that was raised as an issue in the case, but failed on this issue, it means the discriminatory effect of the condition would remain. Further, even though the Industrial Relations Commission is a specialist body, the Tribunal has jurisdiction to deal with discrimination that arises from the terms and conditions of employment. For example, s 25(2) of the ADA Act provides that it is unlawful for an employer to discriminate on the grounds of sex in the terms and conditions of a person's employment. I would add finally that the fact that s 54 no longer protects awards and industrial agreements from the operation of the ADA means that there is no basis for an argument that conduct that is engaged in, in order to comply with an Award of agreement that contains a provision that is discriminatory within the meaning of the Act will be acting unlawfully, at least in relation to the particular claimants who have proved a case under s 24. It does not follow in this case, therefore, that because the Department was implementing the Award or agreements made or sanctioned by the Industrial Commission that the requirement for permanent status was reasonable in relation to these claimants. There is one further aspect of this consideration that arises. Contemporaneously with the repeal of s 54(e), provisions were inserted into the industrial legislation whereby the Industrial Relations Commission may not make an Award of approve an agreement that contravenes any other law. At the time that the 1996 Industrial Agreement was approved, counsel for the Department and for the Federation assured the Commission there was no such contravention. The question arose, perhaps, obliquely whether the Tribunal was exercising a de facto supervisory jurisdiction, or to put the matter more directly, should the Tribunal defer to the specialist jurisdiction of the Industrial Relations Commission in respect of issues, such as work value, as arose here. The answer to that question cannot, I suspect, be categorical. In this case, the Department failed in its challenge that there was an estoppel arising from the Industrial Commission's determination of the Award. In addition, there has been no work value determination by the Industrial Relations Commission on the issue raised in these claims, and the appellants themselves have no standing in the Industrial Relations Commission. The Tribunal had jurisdiction to hear the claims, and once that jurisdiction was invoked, was required to determine them." 41 The Court again re-iterated that the issue of permanency in this instance in the context of the provisions of the Teaching Services Act, was not the issue in the case, noting that: What is in issue is whether the condition with which the appellants must comply to be paid comparably for work of equal value involves a contravention of s 24(1)(b). 42 Following the Court of Appeal's decision, the Department sought, and on 27 May 2005 was granted, leave to appeal to the High Court in State of New South Wales v Amery & Ors No S487 of 2004. 43 The respondent subsequently made application to the Full Bench that it should defer the decision in this matter on the basis that, special leave having been granted by the High Court, it would be premature for the present proceedings to be finalised until the Full Bench had the benefit of the final decision of the High Court. 44 We consider that there is a deal of substance in the application made by the respondent because there is little doubt that there has been a significant inter-relationship between these proceedings and the proceedings commenced in the Administrative Decisions Tribunal, known as Amery & Ors v The State of New South Wales, and the consequent proceedings successively in the Appeal Panel of the Tribunal, the Court of Appeal and, most recently, the High Court of Australia. Indeed, as we noted earlier, in para [9], the present application was filed by the Federation arising from the determination of the Administrative Decisions Tribunal in those proceedings. It is plain that these proceedings have been significantly complicated by the proceedings in the Administrative Decisions Tribunal and those subsequent thereto. 45 Although the Federation is not a party to those proceedings, it is common ground that the individual teachers who were the applicants in those proceedings were provided with legal assistance by the Federation and, to that extent at least, the complications in the proceedings have arisen from the Federation's actions in commencing these proceedings having lent assistance to some of its members to pursue other proceedings which dealt with related issues. 46 Having given detailed consideration to the respondent's application, and the Federation's strenuous opposition to it, and having regard to the conclusions we have reached in this matter, including our conclusions as to the significance of the decision of the Court of Appeal to the outcome in the present matter, we have decided not to defer the decision in this matter. Applicable awards

[26]

49 The Full Bench of the Commission made the 2000 consent Award on 15 December 2000 Re Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award ((2000) 102 IR 202). The award made by this decision was essentially in the form presented to the Commission for approval by consent of the parties and was the culmination of lengthy and detailed negotiations between the parties. The 2000 consent Award replaced, inter alia, the 1996 Award (which, as already mentioned, was the relevant award in Amery). 50 In drawing the Full Bench's attention to the key features of the 2000 consent Award, counsel who appeared on behalf of the Federation referred to clause 27, which introduced the position of temporary school teachers for the first time, in the following terms (at 207): Clause 27 provides arrangements whereby temporary school teachers may advance within the incremental scale, subject to achieving 203 days of service as a temporary school teacher, or by appointment full time for a full school year. 51 In the context of the question of equal remuneration for men and women pursuant to s 23 of the Act, senior counsel submitted that the introduction of the temporary teacher classification was, in the view of the Federation, a significant matter in consideration of the question of "equal remuneration" pursuant to s 23 of the Act. Senior Counsel also submitted that there was a difference of opinion between the parties as to whether there was more to be done to achieve equal remuneration or whether the task was complete. However, Mr Crawshaw submitted that a review as to "equal remuneration" should occur in accordance with the leave reserved clause of the award. 52 In evidence presented by the Federation, Ms Simpson, President of the Federation deposed that (reproduced at 209): 3. It is the Federation's understanding that a greater percentage of casual school teachers compared to permanent school teachers are women and that both the number and percentage of casual school teachers compared to permanent school teachers has been increasing over time. 4. The Federation is of the opinion that the award has made advancements in providing equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. 5. Under the 1996 Crown Employees (teachers and Related Employees) Salaries and Conditions Award, school teachers appointed on a casual basis could not progress beyond the equivalent of salary incremental level 8 for permanent school teachers while permanent school teachers had access to higher incremental levels. 6. The situation in paragraph 5 above, in the Federation's view, has been improved by the introduction of the new classification of temporary school teacher in the award. Under the award a casual school teacher employed in one engagement of work full time for a period of four weeks or more or in one engagement for one to four days per week for two terms or more will be classified as a temporary school teacher. Upon being so classified, and for work performed as such, a temporary school teacher will be able to progress beyond incremental salary level 8. This will achieve greater equality between non-permanent and permanent school teachers. 7. However, the Federation is of the opinion that there are grounds in the future, i.e. after the expiry of the term of the award, to achieve further equality in remuneration and other conditions for casual and temporary school teachers compared to permanent school teachers. This could include providing that all periods of service as a non permanent school teacher are taken into account in determining at which incremental salary and/or rates of pay levels a non permanent school teacher is-classified, and allowing teachers still classified as casual school teachers to progress beyond the equivalent of salary incremental level 8 for permanent school teachers. 8. It is the Federation's understanding that over time there has also been a significant increase in both the number and percentage of TAFE teachers who are engaged on a part time casual basis. Part time casual TAFE teachers are predominantly women. Pursuant to the leave reserved clause of the Award.(Clause 16), the Federation may apply to the Commission for an award variation to vary the conditions of part time casual TAFE teachers in respect of the conditions of full time teachers. The Federation reserves the right to rely on equal remuneration principles to support such an application 53 It is also relevant to refer to the submissions recorded by the Commission on this issue in the following terms (at 210): ... Mr Menzies put that the statute had been complied with, submitting that the Commission would be comfortably satisfied on the evidence of Mr Irving in that regard; and further that the Department, like all other State employers, is an equal opportunity employer. Mr Menzies put that the criteria for employment within the Department are the same for males and females; rates of pay are the same for males and females; access to promotion is the same for males and females; and that there is no element whatsoever of any aspect of employment other than that of equality between male and female employees. He submitted that any distinction in salary between temporary teachers and casual teachers arises from issues of work value previously determined within the Commission, not any gender basis. Mr Crawshaw submitted that the issue raised by Ms Simpson did not go directly to a term of the award. He submitted that the issue raised by his client was based upon the different patterns of employment between permanent and non-permanent employees. The resolution of the issue would depend upon the pattern of non-permanent employment as distinct from full time employment or permanent employment. Furthermore Mr Crawshaw said that the issue raised in the affidavit of Ms Simpson had a long history, in the sense that the Commission had previously made a decision distinguishing between the work value of non-permanent employees and permanent employees. It was for that reason that the Federation did not submit that a term of the award itself raised a relevant issue. At the end of the day, the only means by which the matter could be properly resolved, it was submitted, was by the Commission receiving evidence as to the pattern of employment and the distribution of male and female employees within those employment arrangements. There would also need to be evidence as to the work value of the respective categories of employment. Mr Crawshaw made it clear that his client would not call evidence in these proceedings as to those matters. The only evidence brought in these proceedings by the Federation would be the evidence led on affidavit from Ms Simpson in which certain general contentions were made. 54 In considering these submissions and the obligation on the Commission by virtue of s 23 of the Act, the Full Bench noted (at 212 - 213): In the present case, the Federation eschewed any notion that any term of the award had the effect of offending s 23 of the Act. This was presumably put upon the basis that a term of the award per se did not create the difficulties alluded to in Ms Simpson's statement. The proposition also seems to be advanced on the basis that there is no evidence, as such, to sustain the contentions advanced by Ms Simpson. On the evidence available to the Commission, the proposed award does not offend s23 of the Act, and indeed, is designed to remove difficulties that might have otherwise attracted the intervention of the Commission pursuant to s23. It would appear that the contentions raised by the Federation are largely matters of speculation which, as conceded by Mr Crawshaw , really require further investigation before any firm position can be ascertained.

[28]

55 On 9 June 2004 the Full Bench made a new Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 (the "2004 Award"). 56 The Full Bench held at [44]: We consider that the Federation has made out a case under Principle 6, work value changes, for both the government schools and TAFE sectors (although, as we will later discuss, the overall increase in the work value of teachers in TAFE has been relatively less than that experienced by teachers in government schools). Further, we consider that when taken together, the nature and extent of the changes in work value in the sectors warrant a finding that a special case exists in this matter. 57 The Full Bench considered and summarised in detail the history of regulation of teachers' salaries at [8] - [29]. 58 After considering the extensive evidence and submissions from the parties, including further evidence and submissions in relation to public interest considerations, the Full Bench concluded at [499]: The parties have presented an extensive amount of evidence in support of their respective contentions and made extensive submissions in respect of many of those contentions, as discussed earlier in our judgment. We have expressed the view that changes in the value of work performed by teachers, in particular teachers in government schools, constitutes a significant net addition to the work requirements of teachers since the 1991 datum point. We have no doubt that the requirements of Principle 10, Work Value Changes, are well and truly met in this case and that even after averaging the difference in outcomes for government schools and TAFE, a substantial increase in salaries is warranted. We are also satisfied, as earlier stated, that the Federation has made out a special case, principally relating to improvements in productivity, efficiency and quality of teaching work brought about by the contribution and commitment of teachers to education services and the nature and extent of work value changes demonstrated. 59 The Full Bench then determined at [501]: Given the nature and extent of work value changes, and that a special case has been made out, and having regard to appropriate discounts, the public interest, and the impact of any salary adjustment on the New South Wales economy, we consider that rates of pay for employees in classifications covered by the 2000 Award who are entitled to be paid and progress by way of annual increments on the Common Incremental Salary Scale (that is, teachers; education officers (schools and TAFE); home school liaison officers; Aboriginal student liaison officers; counsellors (schools and TAFE); adult literacy officers; and assistant outreach coordinators), shall be increased by 6.5 per cent, in addition to the interim increase of 5.5 per cent awarded in the Interim Decision. 60 The Federation's case proceeded on two grounds. First, that there were circumstances warranting the finding of a special case pursuant to Principle 10 of the Commission's wage fixing principles established in the State Wage Case 2003 (2003) 121 IR 446. Secondly, the Federation's claim was brought pursuant to Principle 6, work value changes, on the basis that there had been changes in the nature of teacher's work, skills and responsibilities, as well as changes to conditions under which teachers work was performed, such that those changes constituted a "significant net addition to work requirements" warranting the changes in rates of pay sought and accordingly an adjustment of wage rates for teachers on the basis of the work value principle was warranted. 61 The provisions dealing with temporary school teachers in the 2000 consent Award were carried over into the 2004 Award without amendment and were not the subject of submissions to the Commission or specific consideration by the Commission. Present proceedings - applications by the Federation 62 As mentioned at the outset, the present proceedings relate to two applications made by the Federation. The changes sought in the applications are in identical terms except that one relates to the 2000 consent Award and the other relates to the 2004 Award. The current form of the Federation's application is as originally made with amendments submitted in July 2003 following the taking of evidence and the making of the 2004 Award (and in respect of which leave to amend has been granted). As mentioned at the outset, given that the 2004 Award rescinded and replaced the 2000 consent Award we will only consider the application in the context of the 2004 Award. 63 Before turning to the evidence presented by both parties, it is useful to summarise the Federation's formal application. 64 The variation to the 2004 Award sought by the Federation is in the following terms: In subclause 27.5 of the 2004 Award, delete the present words and insert in lieu the following words: "On engagement as a temporary school teacher on or after day one of term one 2001, a temporary school teacher shall be placed on and paid in accordance with the same common incremental scale in Schedule 1 that a permanent school teacher with the same service would be entitled to appointment". 65 The relevant clauses of the 2004 Award are as follows: 2.55 "Temporary School Teacher" means a person employed in one engagement full time for four weeks or more or in one engagement for one to four days per week for two terms or more. 27.5 Temporary school teachers who had been in receipt of the equivalent salary at Step 8 of the common incremental salary scale as a casual school teacher for more than 203 days were, on engagement as a temporary school teacher on or after day one of term one 2001, entitled to be paid the salary at Step 9 of the common incremental salary scale. 66 The grounds and reasons in support of the amended application were stated as: 1. Section 169(4) of the Act allows an award to be varied at any time by the Commission in order to remove any unlawful discrimination arising from the Award. Section 17(3) allows an award to be varied in specified circumstances, either during or after its nominal term.

[33]

For such other grounds and reasons as the Commission sees fit. 67 The particulars of the amended application were as follows:
The 2000 consent Award introduced a new classification of temporary school teacher that affords some but not all non permanent teachers who work in one engagement for eight weeks or more the same terms and conditions of employment as permanent school teachers. 1A. The work performed by TSTs engaged (i) on a full time basis for four weeks or more; and (ii) on a part-time basis for two terms or more; and (iii) the work performed by casual school teachers engaged for between eight weeks and two terms on a part-time basis is of comparable or equal value to the work performed by permanent (full time and/or part-time) teachers. 1B. The effect of clauses 2.55 and 27.5 in the 2004 Award is that TSTs and CSTs described in 1A above are remunerated at a lesser level than permanent (full time and/or part-time) teachers. This is unfair and/or unreasonable.
The definition of temporary school teacher in subclause 2.57 of the 2004 Award does not include non-permanent teachers who work in one engagement for one to four days per week unless they are employed for two terms or more.
By not providing that the definition of "temporary school teacher" in subclause 2.55 includes non permanent teachers who are employed in one engagement for one to four days per week for eight weeks or more, the awards continue the unlawful discrimination identified by the Tribunal in Amery and do not provide wages and conditions of employment that are fair and reasonable.
The award provides in subclause 27.4 that temporary school teachers can move up the common incremental salary scale in Schedule 1 of the Award in a similar manner to permanent school teachers.
Subclause 27.5 of the 2004 Award provides that temporary school teachers have as their starting point, on engagement from 2001 onwards, a place on the common incremental salary scale no higher than Step 9, irrespective of the length of prior service as a school teacher.
Permanent school teachers on appointment have all their prior service recognised and if this is sufficient, may be placed at any point up to Step 13 on the common incremental scale.
By not recognising all prior years of non-permanent service on engagement and by not allowing school teachers immediate access to all points on the common incremental scale, the awards continue the discrimination identified in the Tribunal decision and do not provide wages and conditions of employment that are fair and reasonable. 68 In essence, the Federation, by its amended application, seeks to:
reduce the period a part time casual school teacher ("CST") is required to be engaged in order to qualify as a TST from two terms or more as provided for in the 2004 Award to eight weeks or more; and
effectively remove the agreed phase-in period applicable by having such placement and payment on the common incremental scale operate from 1 January 2001 and that placement be on the same basis as a permanent school teacher recognising all prior CST service (with the effect that a TST is not required to start at Step 8 on the CISS). 69 The effect of the first aspect of the application is that a part-time casual teacher would have to work in an engagement for a lesser period before qualifying as a TST. 70 As to the second aspect of the application, the Federation seeks that on engagement a TST will be placed on and paid in accordance with CISS on the same basis as a permanent teacher with the same service. This effectively means recognition of all prior service of a teacher whether permanent or casual. 71 The Federation seeks the variations described in the applications on two grounds. Firstly, by relying on s 169(4) of the Act to remove the discrimination identified in Amery from both the 2000 consent Award and the 2004 Award. Second, on the ground of work value on the basis that the work performed by casual teachers between eight weeks and two terms is of comparable and or equal value to that of permanent teachers. 72 The second ground was advanced as a special case under the Commission's wage fixing principles. Accordingly, it is necessary for us to, inter alia, determine whether the Federation has made out a case pursuant to s 17 of the Act and applying the principles applicable to special cases that the work performed by temporary and casual teachers in the circumstances contended for is of comparable or equal value to that of permanent teachers.

[34]

73 The history of the regulation of the salaries and conditions of casual teachers was outlined in some detail by Mr Paul Irving, General Manager of Personnel with the Department in his affidavit evidence (exhibit 72) and was not substantially challenged by the Federation. While not critical to our decision, it is helpful to outline briefly the history of regulation of salaries of casual teachers in New South Wales. 74 Significant developments in terms of salary rates were: · 1946 - Establishment of a daily rate for casuals of 1/204 of the annual rate · 1955 - The maximum daily rate of a casual was equivalent to the 8th incremental step of the 12 steps applied to permanent teachers divided by 204 (which scales for 4 year and 2 year trained teachers etc) · It should be noted that at this time there were differential rates for male and female casual teachers just as there were differential rates for male and female permanent teachers. · The devisor for the purpose of calculation of daily rates changed in 1975 to 203 (the number of days in a school year) with a further devisor of 6 to obtain an hourly rate. The maximum salary used in the calculation was that of a permanent 4 year trained teacher on the 8th incremental step, that methodology and devisor continued to be used up until the 2000 consent Award. 75 Up until 1983, rates of pay for casual teachers were determined by the Public Service Board. 76 In 1983 upon application by the Federation a first Award for casual teachers was made by Bauer J in Re Crown Teachers (Casual) Award [1983] AR 672. 77 The decision differentiated for the first time casuals into supply and relief casuals, the former covering engagements to cover absences of permanent teachers that were predictable and might extend over a longer period. The latter those casual teachers providing "immediate relief" for teachers often for 1 day or half a day or very short term leave. 78 Bauer J recognised the difference between those two categories. However, neither the Federation nor the Department assisted the Commission in assessing a suitable point at which the work of a casual teacher could be accurately assessed as being equal to that of a permanent teacher. At page 711, Bauer J said: It was reasonable to argue that the casual teacher who was engaged for and worked for a full year in any one school was called upon, and, in fact, did supply, most, perhaps all, of the services over and above actual teaching obligations which would be provided by permanent teachers. On the other hand the immediate relief casual who came to school at short notice to take the classes of a teacher for one day in that teacher's absence could not be seen to be participating in the provision of services to the employer on a proportional basis to that of the permanent full-time teacher ...

[42]

As we have already stated, we agree with his Honour's finding that the work of casual teachers was not of equal value to that of permanent teachers ... As compared with casual rates in other sections of industry an approach is not open, therefore, which accepts, as is the general position in other awards, that casual work is of at least equal value to that of the permanent or weekly employee. 84 From 1990 until the 2000 consent Award the Federation and the Department essentially agreed to maintain the existing pay structure for casual teachers. 85 In this regard, we note that the Amery decision considered provisions operating pursuant to the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award (295 IG 1424) which operated from 25 September 1996 until 31 December 2000 when it was rescinded and replaced by the 2000 consent Award. 86 The 2000 consent Award reflected the agreement reached between the parties on a range of issues of benefit to both permanent and casual teachers including the introduction of a new temporary teacher classification and phase-in strategy to enable temporary school teachers to access the 13 steps of the incremental scale applicable to permanent teachers by January 2005. 87 The introduction of the new classification meant that casual teachers would only be employed to fill full time vacancies of less than 4 weeks or part time vacancies of less than two terms. In other words, the periods less than those provided for in new definition of temporary teacher. 88 A casual loading of 5% was also introduced to be added to casual rates of pay in lieu of sick leave, annual leave loading and various forms of leave not available to casual teachers. 89 The new arrangements for casual and temporary teachers replaced the 100 days/non 100 day casual teacher distinction established by Bauer J in 1983. 90 A further consequence was that the distinction between casual teachers in terms of "relief" or "supply" was dispensed with. Evidence Overview 91 The parties tendered an Agreed Statement of Facts (Exhibit 14) which detailed background information under the following headings:

[51]

99 With the exception of those teachers who had been appointed on a permanent basis prior to 2000, all other teachers had variously satisfied the requirements for appointment as temporary teachers post 2000. Some 15 of the teachers who gave evidence continued to also concurrently carry out casual teaching, after the making of the 2000 consent Award for varying periods of time between 2000 and 2003. 100 Of the 25 teachers who gave evidence (orally or by affidavit), 18 had commenced their teachers' careers as permanent teachers. Of the remaining 7 teachers, 3 had served as permanent teachers in other States and 4 had, on completion of teacher training been unable to secure a permanent position and as such had commenced their teaching service as casual teachers. 101 Of the teachers who gave evidence, the 17 female teachers who commenced as permanent teachers had either initially taken maternity leave and subsequently returned to teaching as a casual (13) or due to family responsibilities had resigned from their permanent positions (4). 102 All teachers both male and female had placed geographic restrictions on their availability for permanent positions. Those restrictions all arose from considerations in relation to caring for children, caring for a parent or spouse/partner's work location or closeness to siblings. 103 The geographic restrictions fell into the following categories: · a specific nominated school within a geographic area · a list of nominated schools within a geographic area · schools within a specified travelling time (e.g. 40 minutes) or distance (e.g. 50 kilometres) from the teachers' home. 104 In addition at least two teachers (other than high school teachers) nominated a particular subject specialty such as Special Education rather than simply seeking a teaching appointment in a primary school generally. 105 One teacher (Mrs Morton) had taken on additional teaching subjects and undertaken additional training to be able to maintain her teaching at the country school nominated as the main location where she sought a permanent appointment. 106 In addition to the agreed facts contained in Exhibit 14 as to each individual teacher's employment history and current status all teacher witnesses elaborated in more specific detail in their affidavits as to employment with particular reference to their employment as casual and temporary school teachers at particular schools. Tables were included setting out that specific details by date, school, weeks and total days and pay rates. 107 All teachers outlined in their affidavits a variety of duties, tasks and responsibilities carried out in addition to basic teaching duties on casual and temporary appointments. 108 Stephen Holmes deposed that: "6. As a TST and CST, my responsibilities have included: 6.1 Supervising practising trainee teachers. 6.2 Attending faculty and staff meeting. 6.3 Marking tests and assignments. 6.4 Report writing. 6.5 Attending parent/teacher evenings. 6.6 Preparing class lessons. 6.7 Roll marking. 6.8 Undertaking playground duties. 6.9 Supervising carnivals. 6.10 Attending sports excursions eg. rugby league road train. 6.11 Attending welfare meetings at lunch time. 6.12 Attending staff development days. 6.13 Attending and helping to organise end of year camps. 6.14 Coach sporting teams (including lunch time sessions.)" 109 Margaret Douglas deposed that: "11. From 1994 I engaged in a number of extra-curricular activities at the schools at which I have taught which include: 11.1 The organisation of schools 11.2 Organisation of items for concerts 11.3 The organisation of sports and swimming carnivals at school and regional levels. 11.4 Officiating at carnivals. 11.5 Organising Jump-Rope for Heart. 11.6 Organisation of sausag4e sizzles and other special days a the school." 110 She also gave general detail of a range of professional development courses undertaken during that period. 111 William Bourke deposed as to a variety of duties undertaken during various casual appointments including as follows: "13. In 1997, I worked as a CST (relief) in Term 1. My duties included: 13.1 Working with a new student with behaviour concerns. 13.2 Reading program - assisting the STLD teacher. 13.3 Working with small reading groups. 13.4 Assisting relocation of reading resources.

[52]

In 1997, I worked as a CST (supply) in Terms 2-4 at Culburra Public School. My duties included: 14.1 Programming, assessing, recording children's progress. 14.2 Writing half year and yearly reports. 14.3 Conducting Parent/Teacher interviews. 14.4 Organising and assisting with excursions. 14.5 Cooperative planning with other teachers. 14.6 Hosting parents on Education Week Open Day. 14.7 Playground duties. 14.8 Running Chess Club team - hosting and visiting other schools in State schools competition and taking chess as extra lunchtime activity for students one day per week. 14.9 Attending end of year presentation. 14.10 Attending staff meetings, development days and performing associated administrative tasks. 14.11 Assisting and organising bicycle display for Safety Day. 14.12 Attending school carnivals. 14.13 Running and assisting in weekly school assemblies. 14.14 Performing with other teachers and students at biennial concert. 14.15 Undertaking the role of Master of Ceremonies in costume (Mulga Bill) for biennial concert due to usual person being on leave. 14.16 Working on lighting/sound for hall." 112 Those duties continued in 1998 whilst employed as a casual. 113 Irene Francis deposed that: "12. The work I do as a CST/TST involves all the duties I used to do as a full time permanent teacher: 12.1 Teaching complete courses across the school years. 12.2 Setting and marking tests and exams. 12.3 Performing all of the administrative duties of a permanent teacher in playground and other duties, including roll call and sports supervision. 12.4 Attending staff and committee meetings. 12.5 Organising and attending after hours functions involving after school and weekend work. 12.6 Writing programs. 12.7 Acting as a year faculty co-ordinator. 12.8 Establishing class lists and placing new students. 12.9 Undertaking inservice courses in my own time. 12.10 Being available during a period before school each week for Year 12 mentoring (not time-tabled)." 114 Lindsay Anderson deposed that: "10. For the last ten years I have taught a full load, mostly of Mathematics and Science, at Warilla High School. I am aware from my previous experience as a permanent teacher and from my observation of other teachers in that time I have performed all of the duties of a full time permanent teacher. 10.1 I have taught complete courses across the school years. 10.2 I have set and marked assignments, tests and exams. 10.3 I have performed all of the administrative duties of a permanent teacher in playground and other duties, roll call (including setting up and monitoring class rolls for the following year), and sports supervision. 10.4 I have attended staff and committee meetings. 10.5 I have attended after hours functions (including school disco), after school and weekend work and organising, and have conducted excursions. 10.6 I developed a senior Science for Life program, and a Homework Book for junior students."

[56]

"12. I have also performed all the same administrative duties as a permanent full-time teacher including: 12.1 Playground supervision. 12.2 School concert nights. 12.3 Parent information nights. 12.4 Organising excursions. 12.5 Supervising students on overnight camps. 12.6 Attendance at all staff, committee, communication and grade meetings." 116 Lisa Maynard deposed that: "16. As a CST and TST I have performed all the duties of a permanent part time teacher. Since 1999 I have taught a class five days per week. My duties have included: 16.1 Programming for and teaching all grades - Kindergarten to Year 6. 16.2 Performing all administrative duties of a permanent teacher in playground and other duties. 16.3 Attending staff, committee and collegiate meetings. 16.4 Attending professional development both in and out of school hours. 16.5 Participating in school camps and after hours concerts, dances and other school functions, after school and weekend work. 16.6 Involved in transferring two school libraries - Willawarrin and Crescent Head onto the Oasis system." 117 Coralie Pratt deposed that: "15. Over the years my duties as a CST (supply) teacher and permanent part time teacher have included the following: 15.1 prepare and deliver lessons appropriate to the syllabus 15.2 keep essential records, mark tests, assignments, marks for assessment purposes and write reports 15.3 conduct a classroom in such a way as to allow learning to take place 15.4 deal with discipline issues and welfare issues according to school policies 15.5 carry out supervision on playground duty 15.6 supervise and organise sport when required 15.7 attend parent/teacher interviews 15.8 introduce and implement the Senior Science syllabus in the schools - this included attending relevant associated events and writing the program from the syllabus document 15.9 organise excursions, both day and overnight, including all the necessary administrative and supervisory duties 15.10 supervise after-school detention as per the school discipline system 15.11 attend staff development days. I have both actively participated and been responsible for many years for the catering to enable staff to remain at school for the entire day 15.12 voluntarily supervise school discos run by the Student Representative Council 15.13 coordinate the school's order of Teacher Chronicle's for each teacher each year 15.14 conduct out-of-hours tutorial classes for senior students after school in a voluntary capacity - especially near Higher School Certificate (HSC) time 15.15 taught senior science coaching sessions during the school holidays 15.16 assist with the organisation of school photographs 118 It was generally the evidence of the 21 teachers called to give evidence who had had previous permanent teacher experience (18 in NSW and 3 interstate) that the work they performed as casual supply teachers and later as temporary school teachers was either identical to the work they had performed when they were permanent teachers or else from their observations was identical to the work performed by other permanent teachers on the staff. 119 Examples of the opinions in affidavits were as follows:

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131 Ms O'Hallora n's evidence went to the following issues: · How temporary teachers would in reality progress from each step and through the phase-in to Step 13 given the requirement of completion of certain service as a temporary teacher. · Service as a casual teacher would not count as service for temporary teacher progression on the salary scale. · Similarly, service as a temporary school teacher does not count as service for casual teachers' progression on the salary scale. · Progression on the common salary scale for a temporary school teacher is dependent on firstly gaining temporary teacher engagements and completing the requisite 203 days of service for progression to the next salary steps. · The length of time for future progression to Step 13 after the phase-in period is technically completed in 2005 (for a teacher commencing on Step 9 and continuously working 203 days to progress through each step to Step 13) but is not only dependent on service completed as a temporary teacher but where one starts on the salary scale. · Some teachers combine casual temporary and permanent part-time teaching in the one week and before the same class yet receive no interrelated recognition of their work by incremental progression. However, each 203 days worked as a casual teacher and each 203 days worked as a temporary teacher is currently recognised for incremental progression as a permanent part-time teacher. · Comparisons and examples were given as to the anomalies thrown up by the said differentiation in recognition of service as compared with permanent teachers. · An example of the progression difficulties was given as follows: "8.8 Under the 2000 Teachers Award and an Agreement for TSTs the CISS barrier is progressively lifted from at best for a 4YT TST Step 9 CISS in 2001 to Step 13 CISS in 2005 if the Step 9 CISS TST works full time as a TST in 2001, 2002, 2003 and 2004, that is 812 days. If a TST Step 9 CISS in 2001 works in a one day a week TST engagement at best, the TST works 40 days a year. It will take 20.3 years for the TST to reach Step 13 even if they are employed in combination roles as described in 8.7 above and notwithstanding any prior service of 1,624 days which would have placed them at CISS Step 13 as a permanent part time teacher. Also the 40 days each year will not count towards accrual of days for CST service." · "The Conditions of Employment for Temporary School Teachers" distributed by the Department to schools and district offices had not been agreed to by the Federation which found the proposed conditions unacceptable. The Conditions also continued the unlawful discrimination against women found by the Tribunal in Amery. · Response was made to gender and non-permanent teacher demographics. In particular, tables and analyses were provided that were drawn from the evidence of Ms Heather Gray in the Amery case. Those tables covered varying periods from 1991 to 1999 depending on the subject matter. · Non-permanent teachers perform work of comparable value to the work of permanent teachers. The 2000 consent Award recognised that the work of temporary teachers is equal to that of permanent teachers. The work of casual teachers was at least comparable if not equal to that of permanent teachers. · Notwithstanding that the 2000 consent Award made advancements in providing equal remuneration and other conditions for men and women doing work of comparable or equal value, following Amery there were grounds for achieving further equality in remuneration between casuals, temporary and permanent teachers. · This included providing for all service to be taken into account in determining at which CISS steps and/or rates of pay a non-permanent teacher is to be paid so that there is equivalence with permanent teacher. · A variety of examples of anomalies in access to increment progression along the full CISS scale were outlined in detail. * Permanent teachers on approved leave without pay (LWOP) who take on casual work maintain their CISS Level for payment of such casual work. They secure higher rates of pay therefore than casual teachers undertaking the same duties. * A permanent teacher who takes LWOP or resigns and then returns to permanent work returns to the same salary level as previous provided the LWOP or resignation is for 3 years or less. * A permanent teacher who is at the top or near the top of the scale who resigns and returns to work as a casual is reinstated at a lesser rate e.g. a permanent teacher at Step 13 would on becoming a casual be on Step 8. * Similarly, a permanent teacher who resigns and returns immediately as a temporary teacher will commence on a lower step. The level will depend on the year in which the teacher obtains the TST appointment, for example, a 4YT at Step 13 of the CISS, resigning and returning as a TST in 2002 will be placed at CISS Step 10. Progression will then be determined in accordance with TST progression. · Examples were given as to differences in remuneration arising from such anomalies as follows: Permanent to Casual: (i) if the teacher is 4YT the difference at 1 July 2002 is the difference between Step 8 CISS ($45,204) and Step 13 CISS ($55,897) of $10,693. (ii) if the teacher is 3YT the difference at 1 July 2002 is the difference between Step 7 CISS $43,184 and Step 13 CISS $55,897 of $12,713. (iii) if the teacher is 2YT the difference at 1 July 2002 between Step 6 CISS $41,167 and Step 13 CISS ($55,897) of $14,730. · Permanent to Temporary: (i) if the teacher is a TST Step 10 CISS the difference at 1 July 2002 is the difference between Step 10 CISS ($49,237) and Step 13 CISS ($55,897) of $6,660. (ii) if the teacher is a TST 3YT Step 9 CISS the difference at 1 July 2002 is the difference between Step 9 CISS ($47,219) and Step 13 CISS ($55,897) of $8,678. (iii) if the teacher is TST 2YT the difference at 1 July 2002 between Step 7 CISS $43,184 and Step 13 CISS ($55,897) of $12,713. · Detail and information pertinent to part-time teaching (PPT) and its operation and various programs and incentives in place within the Department was given. · The overwhelming majority of teachers who take up part-time work options are women with reliance placed on the figure in the DET 2000 Annual Report and 2001 EEO Management Plan. · These arrangements save on recruitment costs, maintain quality of teaching by retaining experienced teachers, allow for flexibility in school staffing and allow teachers to combine work, family and other responsibilities. · Teachers employed on a PPT basis may also be engaged as TSTs and employed as CSTs. As such, they may be in receipt of payments calculated at different increment levels, notwithstanding that their work experience and performance is relevantly identical. · Ms O'Halloran further deposed: "The DET policy was grounded on a Government policy of expanding flexible working patterns particularly for women and workers with family responsibilities. I am aware, from negotiations with DET and from complaints and enquiries from Federation members that despite the opportunity for CSTs and TSTs to convert their status to permanent part-time after two years of service within a school very few teachers were/are successful in their application. It appeared that many principals were/are even more resistant to the employment of CSTs and TSTs as PPT teachers than they were to applications for PPT work from full time permanent teachers." · Detail was given about casual teachers in relation to progression on the CISS scale, service issues and calculation of incremental service. · It was pointed out that service as a CST counts towards calculation of incremental status for a teacher obtaining a permanent appointment. · Ms O'Halloran concluded that: "DET fails to recognise teachers' blends of service (CST, TST, PPT and permanent full-time) in their overall teaching career. This disadvantages many teachers, including those teachers currently waiting for an appropriate permanent teaching position within the public school system. Many teachers work as non-permanent teachers for years while waiting to gain a permanent teaching position. This is especially the case when teachers have just graduated from university and/or those teachers who have child-rearing responsibilities as parents of young children. These teachers work a variety of work patterns. This service not only provides educational continuity to students in schools but also provides the individual teacher with excellent professional development and keeps them up to date with curriculum change in the classroom thereby providing significant benefit to the employer." 132 Ms O'Halloran considered that: · all teaching positions should be initially filled with either full-time or part-time permanent employees. · this would provide a mechanism to ensure the teaching service was not further casualised and job security eroded. · where possible permanent teachers rather than CSTs should fill long term vacancies. · the identified discrimination should be removed and non-permanent teachers have access to all CISS levels. · Since 1985 teachers in non-government schools performing equivalent work to TSTs were able to progress to the top of the relevant salary scale. Public education was at a disadvantage in attracting experienced teacher in comparison. 133 Ms O'Halloran responded to the historical detail outlined in Mr Irving's affidavit and expanded on that history by way of background on such issues as relevant negotiations and outcomes, funding aspects applicable, claims by the Federation and its decisions made as to acceptable outcomes at the time as well issues as to salary scales and integration. 134 Ms O'Halloran also challenged figures provided by Mr Irving as to new permanent appointments as being at variance with figures provided by Ms Macauley in correspondence to the Federation on 14 February 2003.

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142 Professor James Guthrie has specialised in research, publications teaching and teaching in Accounting Auditing and Accountability issues in both public and private sectors. His current research focus is on the interaction between public sector management reform and changing public sector accounting and auditing. 143 Professor Guthrie deposed as to the New South Wales Budget papers and budgetary trends and policies generally. 144 He also analysed and commented on the affidavit evidence of Christopher Taggart as to actual and projected costings in relation to current part-time temporary teachers and the costs of implementing the changes sought by the Federation. 145 He was unable to independently review Mr Taggart's costings which estimated a requirement for extra funding to meet the Federation's claims totalling $102.23 million over 3 years. He was not in a position to accept those costings as he did not have access to Mr Taggart's detailed spreadsheets etc. However, he noted that the costings were based on 2002 year data which was a year in which there was a 100% increase in part-time temporary teachers. 146 Professor Guthrie maintained that no evidence or documentation was put forward by Mr Taggart to support the costings made. However, based on Professor Guthrie's understanding of aggregate expenditure flows associated with the Department in particular and the budget sector as a whole even if Mr Taggart's figures were accepted on face value as being correct, the three year effect did not "appear to be material." 147 Professor Guthrie indicated that by "material" he meant in an accounting sense in looking at $100 million in the terms of a total expenditure for the State or for the Education Department of billions of dollars. However, he accepted in cross examination that $100 million was a significant amount of money. 148 Professor Guthrie analysed and commented on the evidence of Mr Horn from Treasury and noted that he devoted a considerable part of his evidence to discussion of the vagaries of revenue forecasting in a whole budget context and that he focussed in that discussion principally around one revenue stream, contract and conveyancing stamp duty. On Mr Horn's evidence that represented less than 10% of State revenue and Professor Guthrie submitted that on that basis it was not highly relevant to the question at issue. Professor Guthrie focussed on the lynchpin of Mr Horn's evidence which was a discussion of the precepts of the General Government Debt Elimination Act, including the desirability of constraining growth in expenditure aggregates. 149 Professor Guthrie noted that the legislation consisted of a series of principles and targets but not binding obligations suggesting that was designed, but there was an acknowledged capacity to deviate above or below preset fiscal targets where this was deemed an appropriate policy response. Therefore, any decision to increase expenditure on targeted policy areas should not be seen as necessarily offensive to or inconsistent with the General Government Debt Elimination Act. 150 Professor Guthrie also commented on the evidence that budget expenditure growths had exceeded overall budget targets over the past 4 years. The implication behind this was that it was important at this stage to act parsimoniously with respect to planned expenditures for the current and immediately future budget years, whilst this might be so, there as no reason suggested why actual expenditure growth rates had been higher than budgeted or whether the original budgeted growth rate was in any way reasonable. 151 Professor Guthrie also commented on Mr Horn's assertion that the deterioration in the budget outcome was due to expended additional expenditure when compared against targets in portfolios such as education transportation and health. He cautioned against the use of that language because that suggested the outcome had been as a result of poor management on the part of the agencies in question. An equally plausible explanation was that the central policy mechanism of government had decided to expand the scope of the outputs and outcomes to be produced and worked towards respectively. That could hardly be labelled a deterioration in the budget situation. 152 Professor Guthrie refuted the substance of Mr Horn's affidavit that significant increases in public sector salaries would strain the government's ability to achieve its medium term fiscal goals, the chief of which was the reduction of general government sector debt to a sustainable level by 30 June 2005. 153 Professor Guthrie argued that Mr Horn was suggesting that restraint in current expenditure growth was on the basis that the government wished to reach a financial liabilities load target by an arbitrary date. It was far less arbitrary to ensure the requirement to provide quality educational services to the people of NSW an outcome which the government was committed to based on the current NSW budget papers. 154 Professor Guthrie emphasised it was not his purpose to question the government's overall fiscal policy stance, rather the premise in the evidence which was to suggest that unjustifiable growth in the cost of employing permanent (PPT) part-time temporary teachers would cause a deterioration in the fiscal situation of New South Wales. 155 Professor Guthrie concluded that whilst the economic evidence appeared succinct and based on fact, it was the embodiment of "well crafted rhetoric". He maintained that more substantial evidence would be required to argue a convincing case that the NSW budget is suffering deterioration as opposed to being altered by changes to the legitimate objectives of government which were consistent with the precepts of the General Government Debt Elimination Act. Evidence presented by the Department

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157 Mr Taggart, Director of Corporate Management and Accounting with the Department gave evidence about costings of the Federation's application. His evidence was that to date, the actual salary cost of temporary 2000 teachers to 2002 was $11.43 million in 2001 and $23.955 million in 2001. 158 He had requested costings of the Federation's application on 2 aspects, the reduction in the minimum period of the engagement of the part-time temporary teacher from two terms to eight weeks and removal of the agreed phase in provisions. 159 The costings were completed on the basis of an implementation date of the 1st of January 2003. The 3 year cost of the Federation's proposal to change the service criteria for part-time temporary teachers was estimated to be over the years 2004 to 2006 a total of $17.1 million. The 3 year additional cost of the proposal to remove the agreed phasing in periods was estimated to be over the period 2004 to 2006 a total of $36.89 million. If both of the Federation proposals were implemented over that same 3 year period, the additional cost would be $114.57 million. 160 The costings were all prepared using actual temporary teacher expenditure data for 2001 and 2002 provided from payroll data. The 2002 year data which was the most current had been used as the base for determining work and incremental patterns for forward years. If a teacher worked 100 days as a temporary teacher in 2002 it was assumed that this work pattern would continue each year into the future. No provision had been made for any Award escalation beyond the term of the current Award and the 2003 salary rates were applied to all forward years. 161 Mr Taggart explained the basis upon which the assumptions of temporary teacher movements and progression on the incremental scale from 2001 was based on 203 days of temporary service. To determine the cost of the new category of part time temporary teacher, CEPS data was used to find casual teachers that matched the new criteria, that is where they worked part-time for 1 to 4 days per week for 8 to 20 weeks at one location. Annexed to his affidavit were detailed costings of the Federation's claim. 162 Mr Taggart conceded that costings had not been done of a comparison in the reduction of the cost of casual teachers who had now moved to become temporary teachers and the decrease that that would then give in the actual total salary cost of casual teachers. He maintained that actual expenditures were actual expenditures. However, the costings that had been provided by the payroll department were actual temporary teacher costings. The costings covered the increase in temporary teachers as they moved through the scale. 163 Mr Taggart did not accept that there would be a decrease in the cost of casual teachers as a result of that conversion as he believed the costs would already have been taken into account in the Award costing and what was being looked at was only the incremental difference between 20 weeks and moving to eight weeks. The actual number of teachers didn't increase because there are still a fixed number of teachers working in the system; one was simply changing the way they were working. As they came off the casual payroll and went on to the temporary payroll there would be cost increases but he did not necessarily accept those would be absorbed by the decreased costs of casual teachers; those costings had not been specifically done. The information had been provided by the personnel area of the payroll section based on the figures contained and the data and information in the payroll system. 164 Mr Horn, Director of Fiscal Strategy with NSW Treasury, gave general evidence about the NSW budget and the effect of the Federation's claim. He deposed that the largest single cost faced by the NSW Government was employee related expenses comprising wages, superannuation and other employee costs. Those costs accounted for almost half of the total expenses for the general government sector which was dependent on budget funding. After taking into account costs indirectly linked to wages in the general government sector, the proportion of costs linked to wages was significantly higher, therefore, the management of employee related expenses was critical to the management of NSW finances and the NSW government's fiscal strategy. 165 As at the 2002/2003 budget the employee related expenses for the Department amounted to $5.2 billion a year, about 16% of the total budgeted total expenses for general government in 2002 to 2003. Those costs were therefore important to NSW, to the NSW budget aggregates and the NSW fiscal strategy. 166 Mr Horn then outlined in some detail the general fiscal strategy of the NSW government which was focussed on fiscal sustainability designed to ensure that the services the government delivers can be maintained even in the event of a much weaker economy or other temporary fiscal shocks. The fiscal strategy required reducing the extent of the government's financial liabilities and keeping them at a low level. It emphasised liability reduction because demand for State government services is not greatly affected by the state of the economy whereas the revenue base providing funding for those services was volatile and it could fall significantly when investor confidence was low. 167 Mr Horn dealt with the key fiscal principles of the General Government Debt Elimination Act being constraint in the growth of net costs of services and expenses and tax restraints. 168 Mr Horn also deposed that NSW was unable to be likely to fund any unbudgeted wage increase from Commonwealth Grants because NSW was disadvantaged in the share of GST revenue grants it had received from the Commonwealth. The 2002/2003 budget provided partial funding to agencies for pay increase under current agreements. It had provided for a 16% increase in 4 instalments over the period 2002/2003 for NSW public school teachers. 169 Mr Horn also provided figures comparing the budget and forward estimates for 2002/2003 and 2003 to 2004. Those figures showed that the latest estimates of the budget surplus had deteriorated in the current fiscal year and in the year 2003 to 2004 compared with estimates in the 2002 to 2003 budget. Whilst the estimated surpluses were very modest by recent standards of recent years, they remained very important to the government's fiscal strategy. Estimated surpluses should not be viewed as a reserve contingency fund to cover unanticipated costs such as wage increases but were required for debt and other liability reduction. The deterioration in budget outcomes was due to various expenditure pressures particularly in health, education and public transport and community services. There were also unbudgeted cost increases for drought, bush fires, superannuation and insurance. 170 Mr Horn gave evidence about revenue from contracts and conveyancing stamp duty which was a source of volatility in tax revenues. It had also been a source of higher than budgeted tax revenue in recent years, however, overshooting in those revenue forecasts could not continue indefinitely. There was a prospect of a downturn in the housing market which had been strengthened by recent developments. 171 He also discussed the risk to growth prospects generally in Australia and NSW from ongoing weakness in the global economy. The drought had also had a huge impact on the economy. Growth forecasts had been reduced since the 2002/2003 budget from 3.5% to 2.5% for Real Gross State Product and from 1.75% to 1.5% for employment. The increased risk to the economy strengthened the case for continuing adherence to the State's fiscal strategy and fiscal targets. 172 Mr Horn concluded that the downside risk to the economy were now greater than at any time in recent years. Therefore, any additional wage claims if granted and funded from the budget would place further pressure on the State's fiscal position and put at risk the State's chances of attaining its medium term fiscal target. 173 Mr Horn had not completed his own estimates about the effect of the Federation's application, he had relied on the estimates provided by the Department. Those figures were consistent with the figures contained in Mr Taggart's affidavit. However, Mr Horn's evidence generally was that while the application would have an impact on the fiscal position of NSW, he could not calculate the direct impact.

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174 Mr Hedley Mooney had commenced his employment with the Department as a teacher in 1968. He was currently the District Superintendent Fairfield a position he had occupied since 2001. Prior to that he had occupied various positions including positions as Principal of 2 high schools between 1992 and 2000. 175 His evidence was that as Principal of Pennant Hills High School, he found that there was an abundant supply of casual teachers. Those casual teachers tended to make personal choices about being casual teachers and tended to work close to home with the majority offered work tended to work only at Pennant Hills High School. He was aware of this based on his conversations with those teachers over the years. 176 Mr Mooney deposed that at Pennant Hills High School, the staff were predominantly long serving permanent teachers who accessed a considerable amount of long service leave. Those blocks of long service leave were mainly covered by casual teachers from the school list, and they were filled by offering work to those teachers listed with the school who were considered to be effective teachers. 177 He was aware of at least 3 casual teachers who had worked at Pennant Hills High School over a period of 10 years or more, they lived closed by and liked the working conditions at the school. Those teachers contributed significantly to faculty and whole school responsibilities, 2 of them were Year 3 Advisers, they worked 2 or 3 days each week as casual teachers and were then also available to work the additional day or days and sometimes did. Those teachers were now classified as temporary teachers since 2000. 178 Mr Mooney also deposed that at Granville High School blocks of leave by permanent teachers were more difficult to cover and the majority of casuals worked in the school for shorter periods of time. The casuals available that were prepared to work at that school often did not meet demand. 179 He also said that casual teachers were generally engaged by the Head Teacher Administration and he was aware through discussions with the Head Teacher as to the process that was used to engage teachers on short term relief. It would be done beforehand by telephone and in some cases they would negotiate with teachers who were already there because there was a reasonably regular supply of short term as well as casual and supply teachers. Those teachers would be contacted first thing in the morning. 180 Mr Mooney also deposed that casual supply and long term relief teachers who were employed for longer periods of time were more likely to prepare a sequence of lessons, be involved in programming and be responsible for assessment and reporting of student progress. Corresponding with the length of time they were in a position there was a greater expectation that they would take on more of the responsibilities of permanent teachers in areas such as attendance at staff meetings and school functions such as parent/teacher nights. In cases involving only prepared lessons left to the casual teacher by the permanent teacher, short term relief teachers were rarely required to prepare a lesson or sequence of lessons and were not involved in assessment and reporting or registration of teaching programs. There were also no faculty or whole school responsibility in areas relating to planning. 181 He also noted that a permanent teacher's duties included the planning, implementation and evaluation of the curriculum; student welfare; student discipline and whole school planning such as committee work. Many permanent teachers have responsibility for areas of school organisation such as timetabling; year advising; committee work; debating; learning support team membership and or sport organisation. 182 It was his experience from talking to casual teachers and temporary teachers that they generally sought employment on the basis of a variety of personal choices. However, permanent teachers gained appointment in line with their position on the waiting list or in some circumstances on merit appointment. 183 During cross-examination, Mr Mooney clarified that the 3 long term teachers employed over the 10 year period had in fact been permanent part-time teachers for 3 or 4 days and then topped that up with relief casual teaching on the other days. They did the same work on whichever day they worked because it was actually timetabled from term 4 the previous year so they had a permanent timetable. From a salary point of view there was a distinction but from an operational point of view they had a teaching load that was the same on the days when they worked as permanent part-time and casual, their load was not divided between the two. Those people had become temporary school teachers from the year 2000. 184 Mr David Phipps is employed by the Department as a District Superintendent Penrith District. He commenced his teaching career in 1975 and occupied various promotional positions over the years until he was appointed as a primary school principal in 1990. He served between 1990 and 2000 as primary principal at 2 separate primary schools over those years. He was closely involved in the selection, employment and assignment of duties of casual teachers on a day to day basis and temporary teachers on a longer term basis. 185 Mr Phipps deposed that at Claymore Public School, casual teachers were generally employed on a long term basis to cover leave such as maternity leave and long service leave. They were also engaged on a long term basis for curriculum programs as part of the then Disadvantaged Schools Program. Because Claymore Public School was considered to be a school located in a location that was hard to staff on permanent basis, long term casuals often filled vacancies for extended periods and a pool of casual teachers was developed. Many of the casual teaching staff at Claymore were mature teachers that brought their own expertise and experience to the job. A pool of casual teachers was established by the end of term 1 each year and it had been a considerable task to establish a list of suitable casual teachers who were willing to work at Claymore. By the end of the school year, many of the casual teachers in the pool were employed in a long term capacity either at Claymore or other schools or had received permanent appointments or were moving geographically or had decided not to continue casual teaching. 186 Mr Phipps also deposed that in contrast John Purchase Public School was seen as an attractive school to work in with a good school student body, well resourced, good buildings and a pleasant environment with experienced permanent staff. Many of the casual teachers employed at John Purchase were in fact parents of students at the school or else lived in the local community. There was a mix of mature experienced teachers as well as beginning teachers employed on a casual basis. 187 Mr Phipps believed that the casuals at John Purchase, in particular, the mature teachers, made the choice to have some control over the conditions and the times that they chose to work. For example, a casual teacher might be offered 3 days a week for a term and they were in a position to say 3 days did not suit their needs or interests. Young beginning teachers who wanted to stay in the area or at the school in particular were happy to take any offered work, be it long term or day to day. 188 Mr Phipps expected a casual teacher to conduct himself or herself in a professional manner and follow the class program as set out by the permanent or temporary teacher or after consultation to provide work that was at a suitable level and context for the group they were teaching; to ensure that students were well managed and engaged in productive learning; to be aware of and follow the routines of the school; to undertake playground duty and ensure the work completed during the day was marked. He did not expect them to attend staff meetings; be members of committees or undertake school-based training and development. However, those opportunities were made available to day to day casual teachers who attended the school on a regular basis. 189 Temporary teachers engaged for short term, for example, 1 term only, were expected to attend staff meetings; to prepare programs of work for students and to ensure assessment and reporting expectations were met. However, they were not expected to be members of committees but in some cases were and whilst training and development was seen as preferable it was not essential. 190 Mr Phipps also explained that temporary teachers who were employed in a longer capacity, for example, over a full year whether full time or part time were expected to fulfil the requirements expected of permanent full time or permanent part time teachers taking into account his or her role and the number of days present each week. Temporary teachers in the long term could be assigned roles and responsibilities in addition to their teaching load; be expected to participate in school based training and development; be expected to contribute towards committee processes; to undertake interviews and other interaction with parents; to report to a school supervisor; to become a part of the relevant team in which they were working; be expected to attend staff meetings; prepare programs of work for students and ensure assessment and reporting expectations be met in the same way as permanent teachers. 191 Mr Phipps further explained that in the years that he was engaged as a principal, he employed casual and temporary teachers on the basis of their availability and willingness to work in the roles offered, their suitability and performance in the role. 192 Mrs Robyn Bale is Manager, Access and Participation for the Department. She had been a classroom teacher at various schools between 1978 and 1991, had held executive and assistant principal positions between 1991 and 1994 and during the period 1995 to 2001 she was Principal of Mainsbridge School Liverpool District. 193 She gave evidence about the practices that she followed whilst Principal at Mainsbridge School in relation to the employment of casual teachers. Because of the variety of leave entitlements provided for permanent teachers there was a steady stream of staff absences due to staff taking various forms of leave as well as Leave Without Pay and training in professional development opportunities. There were also vacancies at the school waiting to be filled. In addition a number of permanent classroom teachers worked in a part-time capacity or job shared positions. 194 At the end of term 4, 2001 there were a total number of teaching staff absences at Mainsbridge School of 733 which were all filled by teachers on a casual basis. 195 During term 4 the anticipated enrolment figures were provided to the School Staffing Unit which confirmed permanent staffing entitlements for the following year. If there was a long term vacancy due to some form of leave, the Staffing Unit could allocated a mobile staff member to fill this vacancy. The Principal was informed both informally and formally of new appointments to the school, and where a position remained vacant, it could be filled by the Principal. 196 Mrs Bale deposed that, in the period from 1995 until the end of 2001, there was a shortage in the supply of teachers with expertise in working with students with disabilities. If the vacancy was full time and anticipated to exceed 4 weeks, it would be filled by a temporary teacher; if less than 4 weeks, it would be filled by a casual teacher. 197 Mrs Bale indicated that at Mainsbridge School a casual teacher fills the day to day classroom allocation of a teacher including classroom instruction and hygiene and personal care activities, playground duties and supervision of sport activities. They might be instructed by the Principal or executive staff member to assist with other class groups. 198 Dependent on the period of time they were engaged, a temporary teacher would have responsibilities more similar to a permanently employed teacher and would be maybe expected to program the class that they were allocated, be involved in whole school activities, such as training and development, curriculum groups and organisation of school events, such as sports teams, carnivals, school socials, fetes, Award presentations, musicals, writing of school reports, development of each individual education programs, personal care, hygiene, mobility and behaviour programs. 199 A temporary teacher might also be responsible for the assessment of a student's work and evaluate that work. This assessment and evaluation informs the future planning and programming of learning and teaching activities for that student and class. Temporary teachers might also be involved in parent/teacher discussions, informing parents of their child's progress and development. 200 Mrs Bale deposed that a casual teacher did not have the same responsibilities as either a permanent teacher or a temporary teacher, however, they did fill a valuable role in the school because they supported the needs of the students and the school by being a qualified teacher. Their employment on a day to day basis to replace other staff where required enabled the school to continue operation with minimal disruption to routine. The school ensured that the casual teacher was provided with an overview of the class, the daily routine per class and relevant policies, practices and procedures. 201 Mr Graeham Kennedy is the Acting Assistant Director-General (School Education Service) with the Department. He commenced teaching in 1975 and held a range of promotional positions including as a Principal up until 1994. Between 1995 and 2002 he was District Superintendent of the Campbelltown District. 202 Since 2002 he has held positions in the Department's head office as Acting Assistant Director-General. His responsibilities include providing leadership support and guidance to the Professional Support and Curriculum Directorate and the Vocational Education and Schools Directorate. He also supervises 9 northern school districts and provides leadership, direction and support with the professional development of the 9 District Superintendents. He is also responsible for the implementation across the 9 districts of a revised structure within the school portfolios and led the effective implementation of the new Special Education Plan and structures across the 9 districts. 203 Mr Kennedy's evidence was that the school year is a complex cycle of teaching and learning and other organisational activities in which particular teaching responsibilities and capabilities are required at different times of the year. In addition to the actual teaching of timetabled classes, the spectrum of work performed by a permanent teacher may include duties associated with: · lesson preparation and evaluation · homework setting and marking · playground and transport supervision · supervision and coaching of students at sport · maintenance of attendance registers, students records and other statistical returns as required · pastoral care · student discipline · participation in student assemblies · providing collegiate support for more experienced staff · participation in professional development programs and meetings - staff, faculty and other meetings · attendance at excursions as required by the curriculum · parent reporting, liaison and communication · other miscellaneous duties which participation in the corporate life of a school involves such as preparing students for dramatic or musical performances, school magazine, school fetes etcetera. 204 Mr Kennedy also deposed that the range of actual duties of a non-permanent teacher employed for short periods of time and the conditions under which they undertake those duties is generally significantly less than the range of duties that a permanent teacher is asked to perform and those duties on a number of factors which vary from circumstance to circumstance. 205 In four weeks a non-permanent teacher would generally not be asked to, or have the opportunity to do the full range of duties, or even a comparable range of duties, to those undertaken by a permanent teacher. It follows that the lesser number of days per week are non-permanent teacher works the less likely they are to do the full range of duties. The duties that a part-time non-permanent teacher working one day per week for eight weeks could be expected to undertake or would be asked to undertake could not be comparable to the duties of a permanent teacher. 206 A non-permanent teacher who is employed part-time is less likely to do a range of duties including the following: · Engage in activities which occur on the days when he or she is not at the school; for example, staff meetings, sport, school carnivals, staff professional development activities, staff committees, and so on · Follow-up on student behaviour matters · Participate in the full range of student assessment, reporting and conferencing activities that constitute the student assessment cycle · Take responsibility for longer term student activities such as team coaching, musical performances and student leadership programs. 207 Mr Kennedy also deposed that the participation of permanent teachers in these and many more activities is critical to the corporate life and effective operation of schools and represents a significant difference in the roles of non-permanent staff compared to permanent staff members. 208 Mr Kennedy was at pains to indicate that this was not to be interpreted as a criticism of non-permanent teachers. Their work and contribution was highly valued and critical to the effective operation of NSW government schools. The comparison only served to illustrate that the role and responsibilities of non-permanent teachers was significantly different from that of permanent teachers and any comparability in the roles and responsibilities could only be established if the non-permanent teacher is in the school for an extended period of time. Further, the fewer days per week that a non-permanent teacher worked, the longer he or she would need to work in the school in order to experience a range of duties comparable to that of a permanent teacher.

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213 Mrs Valerie Macauley is the Director of Staffing Services with the Department. She has held various senior administrative positions over the previous 10 years. Amongst her responsibilities are included the controlling of allocations for all school staff entitlements and the staffing for 2237 schools; controlling teaching qualifications and probity checks for all staff; maintaining data and preparing reports from the personnel and entitlement systems and controlling the classification of all schools and positions. 214 She gave evidence about the staffing of NSW government schools and in particular evidence about temporary part time positions and permanent positions within the general school system. She indicated that schools in NSW are staffed on the basis of government approved enrolment driven formulae with a small number of approved positions allocated on the basis of special needs. In November 2002 there were 51216.64 equivalent full time teaching positions allocated to schools (FTE's). 215 Mrs Macauley deposed that staffing is undertaken on an ongoing basis and involves recruitment of new teachers in addition to the promotion and transfer of existing permanent teaching staff. She indicated that the Department, in the operation of government schools, is obliged to meet the requirements of the Education Reform Act 1990 which includes enrolling any child whose home is within the intake area of the government school in question and that that Act also requires that principals are to ensure that the minimum curriculum as prescribed are met and apply appropriate methods of staffing their schools to meet those minimum requirements. 216 She further explained that: · The principals provide the Department in August of each year information regarding anticipated student enrolments for the following year. Schools are then allocated their formula driven entitlements for term 1 based on those anticipated student enrolments. Adjustments on those figures can be made up until the end of the year and teacher entitlements may vary significantly from the actual student enrolments and teacher entitlements. · The difference in anticipated and actual student numbers has a significant effect on the anticipated and actual teacher numbers especially when regard is given to the specific skill mixes that are required for effective curriculum delivery. The balancing of student enrolments against teacher numbers occurs across the 2,237 schools and is a major administrative function involving over 80 staffing officers and most senior executives in schools. · Around week 2 and week 3 of term 1 principals advise the Department of a school's actual student enrolments and schools are then subsequently advised by the School Staffing Unit as to their entitlement based on student enrolments statewide staffing formula needs based allocations and in some cases through school submissions for particular teacher supplements. · There are further teacher entitlements available through funding for the employment of non permanent teachers to cover classes of permanent teachers on some forms of leave or absent from the school on official business. · The Staffing Agreement negotiated by the Department and the Federation in 2002 sets out the processes for the transfer, promotion and appointment of teachers. · In addition, those teachers who have nominated for transfer must also be found vacant positions and that takes place from mid-term 4 to the end of term 1 the following year and maybe ongoing after that. Actual school enrolments may then give rise to further nominated teachers which the Department would be seeking to place in term 1. However, the number of nominated transfers would not necessarily be known by the School Staffing Unit until well into term 1. Other schools would have vacancies due to increased enrolments or for other reasons and they need to fill the position with a non permanent teacher until the School Staffing Unit permanently fills the vacancy. The School Staffing Unit processed in excess of 10,000 staffing transactions in 2001/2002 staffing operation for schools. · On receipt of teacher entitlement during term 1 of the school year, principals and executive staff complete the final allocation of permanent teaching staff to classes and programs and determine the need for non permanent teachers. · Non permanent teachers are engaged directly by schools to provide continuity of teaching services and staffing flexibility which arises from the need to provide for such things as replacement of permanent teachers who are absent for a variety of reasons including release from face to face teaching (primary teachers), participation in training, absences on short term or long term leave, participation by permanent teachers in rehabilitation programs. In addition the use of non permanent teachers may arise from variations in student enrolments; to provide teaching resources for a variety of specialised programs; to provide resources for a variety of educational programs specific to individual schools, initiated by those schools and for educational program not requiring a full time teaching load for subjects that are specific to individual schools. 217 Ms Macauley detailed the various classifications and arrangements relating to non permanent teachers prior to the 2000 consent award. The 2000 consent award introduced the new category of temporary school teacher and now provides for 2 categories of employment for non permanent teachers - casual school teachers working in schools to cover day to day staff absences and temporary school teachers employed on engagements as per the provisions of the 2000 consent award. 218 Ms Macauley annexed to her affidavit a document entitled "The Engagement of Temporary Teachers - Guidelines" which sets out the current procedures for the employment of temporary teachers. 219 She deposed that the temporary teacher classification has provided non permanent teachers with the opportunity to be engaged for specific long term periods and to gain access to the pro rata provisions of permanent teachers. This has also benefited the staffing of schools through the management of long term relief in schools and the provision of continuity to education programs. 220 She refuted Mrs O'Halloran's claim that the use of casual teachers has dramatically increased. Tables were provided by financial year setting out the number of actual days worked by casual teachers, the FTE's worked by casual teachers and the actual numbers of casual teachers. Those tables covered the years 1994/1995 through to 2001/2002. They showed the actual FTE's worked by casual teachers in 1994/1995 was 10031.005, the actual number of days was 2,006,201, the actual number of teachers 26,293. For the year 2001/2002 FTE's worked by casual teachers were 4,674.09, the actual number of days 948,840, and actual numbers of casual teachers 23,104 representing a 22.28% reduction in the number of actual casual teachers. The reduction in the actual number of days worked was 33.81%. 221 Ms Macauley deposed that the figures provided covered casual teachers only and did not include temporary teachers. The introduction of the temporary teacher classification and the use of permanent mobile teachers from May 2001 contributed to a significant decline in the employment of casual teachers since 2000/2001. The number of teachers available to undertake casual work increased between 1994/1995 and 2000/2001. The decrease in casual teachers in 2001/2002 being attributed to the increased use of temporary teachers. 222 Ms Macauley also provided tables illustrating the total student enrolments and teacher staffing entitlements over the last 8 years. In 1996 the total student enrolment was 771,394, the full time equivalent teaching staffing entitlements was 49,747. In 2002 the total student enrolment was 768,014 a reduction of .02%, whilst the total teacher staffing was 51,021, an increase of 0.83%. It was the Department's policy to employ as many permanent teachers as appropriate to meet the needs of the schools. She deposed that the Department's permanent part time work strategy, permanent mobile teacher appointment strategy, together with the figures provided, demonstrated that the Department has been effective in increasing permanent full time and permanent part time work opportunities. 223 Ms Macauley detailed the various teacher employment procedures applied by the School Staffing Unit which has processed between 8,000-9,000 teacher employment applications annually for permanent, temporary or casual employment, explaining that: · Applications for both permanent and non permanent employment involves a formal assessment of required academic qualifications, personal suitability assessment (by way of interview) and a probity check. · Applicants decide whether they want to apply for permanent part time, non permanent work or a combination of these. They also nominate the schools they are willing to be appointed to. Those seeking non permanent appointment can in addition also nominate when they will make themselves available and on what days. · A permanent full time or part time teacher, and a qualified seeking full time or permanent part-time employment, is given a priority date based on the date of their application. The application includes personal details, qualifications (accredited and non accredited subjects) special aptitudes and areas of expertise and the list of nominated schools. This information is all entered into the AS/400 computerised staffing system. · When a vacancy occurs in their school, a principal submits a request for the position to be filled specifying codes both for accredited and non accredited subjects (where applicable), special aptitudes and areas of expertise. This data is also entered into the AS/400 Computerised Staffing System to then match against those teachers with active applications for transfer or employment. · In accordance with the Staffing Agreement between the Department and the Federation (covering the procedures for staffing of schools from term 2, 2002 until term 2, 2005), the priority for appointment to vacant class teacher positions is given to teachers with active priority transfers (nominated, incentive and compassionate transfers), remaining vacancies are filled through a mix of service transfers, scholarship holders, teachers who have completed target and training programs, graduate recruits and casual teachers appointed under the Permanent Employment Program and teachers returning from leave without pay, advertisement and employment. · Teachers seeking employment are considered by the School Staffing Unit for a particular school on the basis that they have nominated for that school through their application, their qualifications, special aptitudes, areas of expertise and subsequently matching the codes requested by the school. Where employment is considered, priority is given to the applicant who best matches the position and who has the earliest priority date. Once a match has been made of position and a teacher seeking employment, an offer of appointment is made to the teacher. Teachers who decline an offer to a school on their preference list have their priority date relegated to the date on which the offer is declined. · The Department also provides the opportunity for all applicants for employment to make their application active or inactive at any time depending on their choices and circumstances. An inactive application date means an applicant is able to still maintain their priority date. In 2000, a survey of teacher employment applicants was conducted with applicants who failed to respond following the issue of reminder notices having their applications made inactive. 224 Ms Macauley further deposed that officers of the School Staffing Unit had also made contact with a large number of non permanent teachers to promote permanent full time and permanent part time work opportunities. However, she had been advised that many non permanent teachers have informed their principals and the School Staffing Unit that they preferred to work in a non permanent capacity as it suits their family, lifestyle or business requirements. 225 Ms Macauley then commented on the evidence of a number of witnesses in matters for the Federation including the application for Teachers (Non Continuing Contract) Award IRC 434 of 1997 as well as the Amery matters in relation to teachers who had made various choices and their recognition that they had by those choices then limited their chances for permanency. 226 She commented that s 71 of the Teaching Services Act 1980 provides that the Director-General may require a permanent teacher to transfer to any other school in the State and if the teacher refuses without reasonable excuse the Director-General shall dismiss the teacher and indicated that this provision does not apply to non permanent teachers. 227 Ms Macauley also detailed various initiatives that had been implemented to assist non permanent teachers to obtain permanent placement. This included the Teacher Employment Priority Scheme (TEPS) which rewards non permanent teachers by accelerating their priority for employment by 6 to 18 months for every 50 days of teaching service in school. Additional benefits were provided for non permanent teaching service in the most difficult to staff and remote schools. This Scheme also enhances the quality of teaching by ensuring that more permanent appointees have recent teaching experience in government schools. The Scheme had been highly successful in attracting and retaining appropriately qualified teachers for government schools in NSW as over 6017 teacher applicants waiting for employment who had received TEPS benefits and benefits from previous schemes have now been permanently appointed since the commencement of the 1998/1999 staffing operation. 228 In relation to the 2002/2003 staffing operation, Ms Macauley noted that up to 1000 new graduates are being recruited from higher education institutions across New South Wales and the Australian Capital Territory and are appointed to vacant positions based on the applicant's preference and teaching subjects. 229 Ms Macauley also deposed as to a variety of practices implemented by the Department to assist teachers to combine work and family or carer responsibilities - these included a range of flexible workplace practices but at the same time enabled the public education system to retain the valued skills and experience of those teachers. Those flexible workplace practices included leave without pay, permanent part time work, maternity leave, paternity leave, family and community leave and personal carers leave. 230 She deposed that permanent part time work for teachers was introduced as a pilot program in 1988 as part of the Department's Flexible Workplace Practices and the Department has promoted permanent part time throughout the last 14 years. As at 30 June 2001, a total 5,756 teachers were employed as permanent part time teachers. This included both permanent part time work and permanent teachers on part time leave without pay or maternity leave. 231 However, she indicated that the Department's current permanent part time policy is that, at the school level, permanent part time should not exceed 10% of any school's full time equivalent staffing establishment except in the case of schools with less than 10 FTE positions where the limit will generally be one full time equivalent. If schools wish to exceed this limit they may do so on a case by case basis. The level of permanent part time work able to be accommodated is affected by curriculum patterns and subject choices of students and each school is different. 232 In addition, Ms Macauley explained that eligible teachers can participate in the Deferred Salary Scheme which enables them to fund a year away from teaching by deferring part of their salary, this leave can be taken for a variety of professional development and renewal experiences with resulting benefits to public education from teachers participating in such activities. 233 Ms Macauley then summarised the staffing evidence relating to the 24 teacher witnesses and indicated those teachers who had priority dates for appointment and those teachers who have since 1996 entered into permanent teaching positions. 234 Ms Macauley concluded by noting that the Department will only appoint a teacher where there is a need for such as dictated by student numbers and the school's class/syllabus/curriculum needs. School staffing must be based on the educational needs of the students not the desire of a teacher to teach in a particular school. 235 Ms Macauley also deposed that factors that influence when a teacher obtains a permanent employment include the teacher's classification and geographic location specified. These factors are unrelated to gender. A computerised system matches applicants and vacancies. In addition, applicants in certain areas compete against those permanent teachers with active priority and seeking transfers. There are also geographic areas of little turnover. 236 Ms Macauley conceded that temporary school teachers were a form of non permanent employment and that the tables she had produced, whilst they demonstrated a reduction in the number of casual teacher, that was attributable largely, if not entirely, to the introduction of the temporary school teacher classifications. She was unable to indicate from this table the extent to which non permanent teaching has varied or stayed the same over the period since 2001. 237 Ms Macauley also conceded that under the former casual teaching system that existed, the old casual supply position was used to introduce some certainty into teaching continuity and covered generally long term absences. The temporary school teacher system basically put into effect the same sort of arrangements for non permanent teachers, the difference being that they were treated under the Award in a way that was comparable to permanence. 238 Ms Macauley was then taken to a number of examples as to how ongoing short term vacancies could arise, particularly in relation to part time vacancies as a consequence of a teacher taking maternity leave or returning on rehabilitation and chose to or was only available to work 2 or 3 days per week. The other days would be taken up by a casual school teacher. But effectively that teacher would be job sharing class responsibilities with the permanent teacher and the non permanent teacher would be expected by the Department to produce equivalent educational outcomes as the teacher they were job sharing with. 239 Ms Macauley also conceded that a temporary school teacher, to fulfil the award requirements as to definition, would need to work 2 complete school terms. A non permanent teacher would not satisfy the temporary school teacher provision if, for example, that teacher commenced part way through term 2 and worked until part way through term 4, that is did not work 2 complete school terms. 240 Further examples were given as to anomalies in the employment of temporary school teachers for Ms Macauley to consider, in particular where a temporary school teacher worked for a full school year then continued to work in term 1 of the following year but then sought herself to take maternity leave. Under the award provisions that term 1 engagement does not count for the purpose of temporary school teacher service. Ms Macauley maintained that that could be an issue that was subject of negotiation with the school principal, however, the principal was not required to appoint the person on a temporary school teacher basis and they could in fact end up being employed as a casual. 241 Ms Macauley agreed that the information available as at the 9 March 1998 showed that there were 15,569 non permanent teachers seeking permanent employment (Exhibit 14 Agreed Facts). She was unable to say whether that figure had either significantly increased or decreased as at the date of the hearing. 242 Ms Macauley also accepted that those teachers who were seeking employment contained a large number of variations depending on individual applications as employment was sought across both primary and high school positions and across various subject specialisations in relation to high schools. That was in addition to any geographical limitation that was raised. 243 She also agreed that in her evidence and in the figures provided by Mr Irving there were some 3,000 permanent positions, being a mixture of full time and part time available to be appointed to in the year 2000 and on that basis if there were 15,000 people seeking to be appointed to a permanent position in 1998, it would take 5 years for those 15000 people to be appointed. However, she thought it would be rare that they got close to that and that it may in fact take longer when one took into account the range of variables that impacted on an appointment, only one of which was the geographic location to which a teacher was seeking such appointment. 244 She expected that if that variable of geographic location was removed and a teacher was prepared to teach anywhere in the State the chances were high that they would pick up a position and in some cases much sooner than a 5 year period. Evidence as to employment of casual teachers and the background to the salary and conditions for casual teachers and temporary school teachers

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He also detailed the various decisions of the Commission and agreements that arose in relation to these periods of time and specific cases. 247 Mr Irving then dealt with the industrial history of casual teachers which was compiled following an examination of Departmental files and publications to identify documents which might assist in the understanding of the history of employment of casual teachers in government schools in NSW and the history of their entitlements. No reference could be found to the employment of casual teachers prior to 1946. The history of those casual teachers has been referred to earlier in this decision. Mr Irving particularly summarised the outcome of the 1983 casual teachers' case before Bauer J. 248 Mr Irving explained that, in relation to the 2000 consent Award, agreement was reached between the Department and the Federation on the 24 May 2000 and contained a package of initiatives which included enhanced salary and conditions for teachers as well as items of benefit to the Department. The package was agreed within certain budgetary parameters. Various press releases by both the Minister for Education and Training and the Teachers Federation were referred to in relation to the agreement reached. The Federation advised the Department that the agreement as a settlement of the salaries dispute had been endorsed by both the executive of the Federation and its members in June 2000. 249 Mr Irving observed that in the "President Write's" column 23 June 2000 edition, of the Teachers Federation Journal, "Education" reporting on the end of the salaries dispute and the agreement reached with the Department, it was stated inter alia "progress having been made on all the pay equity issues of the Federation's claim is..... cause for celebration. The progress is slower than we would have wished..... after ten years of campaigning, the principle of "equal pay for equal work" has finally been established through the progressive breaking of the barrier for casual teachers in block work". 250 Mr Irving summarised the matters contained in the 2000 consent Award as including: · salary increases of 16.98%, additional year advisor allowances; reclassification matters and a strengthening of annual teacher assessment and review processes; increased flexibility in teaching hours for Years 11 and 12 and provisions regarding TAFE teacher approved programs and maximising annual student contact hours in TAFE. · a no further claims clause to operate until the expiration of the award on the 31 December 2003 with the exception of conditions of part time casual TAFE teachers. · the introduction of a classification of temporary school teacher and that such temporary teachers would be entitled to pro rata salary and conditions of permanent teachers. The particular provisions relating to temporary teacher classifications were detailed as well as the phasing in process for access to the full 13 Step incremental salary scale to be available to temporary teachers. Temporary teachers would move from Step 8 to Step 9 as at the 1 January 2001 and providing they satisfied the requirements for appointment as a temporary teacher would move up the scale to Step 13 by 1 January 2005. 251 Mr Irving deposed that the phasing in provisions were agreed as part of the overall package of salaries and conditions matters. The Department was able to consent to the 2000 consent Award in part because salaries would be locked in for the life of the award thus giving predictability and certainty to the Department's budgetary processes. 252 Mr Irving further explained that agreement to the introduction of the classification of the temporary school teacher meant changes in the periods for which casual teachers would be employed and also provided for a loading of 5% to be added to casual teachers' rates of pay. The loading is in lieu of sick leave, annual leave loading, family and community service leave and special leave. The new arrangements for temporary and casual school teachers replaced the 100 day/non-100 day casual teacher distinction that was established by Bauer J in 1983. The distinction between casual teachers in terms of "relief" or "supply" was also abandoned with the introduction of temporary teachers and the new casual teacher provisions. 253 Mr Irving detailed the provisions in the 2000 consent Award that reflected the agreement reached between the parties and indicated that: · sub-clause 27.5 sets out conditions for the recognition of prior casual service when determining a temporary teacher's commencing salary. A four year trained teacher who was paid as a casual teacher at the maximum four year trained casual rate of pay for more than one year (203 days) can have this service recognised to allow them to commence on Step 9 as a temporary teacher. The provisions of this sub-clause were not part of the original agreement but were agreed between the parties during the drafting of the 2000 consent Award. During negotiations on the implementation of the temporary teacher classification, this provision was extended to three year trained temporary teachers to allow them to commence on Step 8 and to two year trained temporary teachers to allow them to commence on Step 6. · all previous casual service (in multiples of 203 days) is taken into account in determining a permanent teacher's commencing salary on appointment. However, the limitation on recognition of casual service for temporary teachers was agreed as part of the package of improvements to salaries and conditions. All other policies that determine a permanent teacher's commencing salary, for example, recognition of non teaching service or child rearing apply, to temporary teachers subject to the maximum temporary teacher's salary applicable as per the phase in schedule which was also agreed by the parties. · Once a teacher has commenced as a temporary teacher, incremental progression along the common incremental salary scale occurs by way of the provisions contained at sub-clause 27.4 of the 2000 consent Award. This sub-clause provides that incremental progression occurs after completion of 203 days of temporary school teacher service or the completion of a complete year's full time temporary engagement. · a special transitional provision that modified the operation of sub-clause 27.4 during 2001 only was agreed between the parties subsequent to the making of the Award. This provision allowed temporary teachers who at the end of 2000 had worked less than 203 days casual service at their current casual rate of pay to combine this casual service with any temporary service they undertook in 2001. When this combined service was equal to 203 days they could move to the next temporary teacher incremental step. · Sub-clause 27.6 provided for the establishment of a working party in 2000 and 2001 comprising both the Department and the Federation to negotiate and discuss the implementation of the temporary teacher classification and between January and June 2001, 16 meetings were held in accordance with this provision. 254 Mr Irving then explained that: · an agreed memorandum was prepared and issued to all school principals in January 2001 following extensive discussions regarding a comprehensive document describing the conditions of employment of temporary teachers. · The Department prepared the initial draft of this document, with many changes made based on the views of the Federation including the transitional provisions referred to above. However, in June 2001 when the Department wrote to the Federation to provide a final version of the document and to advise that it intended to distribute this to all schools and District Offices as soon as possible, the Federation responded by advising that it could not agree to the document and the conditions contained within were unacceptable to the Federation. · The Department proceeded to issue the document "Temporary School Teachers Conditions of Employment" to all schools and district offices on the 16 July 2001, that document was annexed to Mr Irving's statement as Annexure 20. Also annexed was a Memorandum issued to all schools and district offices in June 2001 explaining the new provisions applicable to casual teachers. 255 Mr Irving summarised the Department's view of the Amery case and the claims that were made by the female teachers that when they were long term casual teachers engaged to perform teaching and other work in excess of eight weeks continuously at any time and only paid and restricted to level 8 of the permanent teacher's pay scale, they were underpaid considering the duties performed and their years of service. 256 Mr Irving noted that the category of casual supply teacher considered in Amery was no longer utilised by the Department. The decision in Amery does not automatically flow to the temporary teacher category as the issues before the Tribunal related to a specific group of female casual employees under the 1996 Award working in more than 8 week blocks and could therefore be distinguished from the Federation's application which relates to all male and female temporary school teachers under the 2000 consent Award. The temporary teacher classifications came into being in 2001 after the making of the 2000 consent Award and after the Tribunal had completed hearing the Amery matter and therefore they could not have considered the temporary teacher classification to which the Federation's application refers. 257 It was the Department's view that the temporary teacher classification has largely addressed the claim made by the complainants in Amery. 258 Mr Irving acknowledged that the items contained in the complainants' claim that have not been addressed relate to the length of part time temporary engagements, and how quickly a temporary teacher may access the full 13 steps CISS and the extent to which any prior service is recognised when determining a temporary teacher's commencing salary. 259 The current provisions in relation to these items were agreed between the parties in the May 2000 salary agreement and during the development of the 2000 consent Award. 260 It was Mr Irving's view, having considered the application by the Federation and the consequences of s 169(4), that having reviewed the industrial history relating to casual and temporary employment, he did not believe there was any unlawful discrimination arising from that instrument. 261 Mr Irving then went on to deal with the submissions of the parties before the Full Bench in relation to the making of the 2000 consent Award and in particular with compliance of the affidavits prepared pursuant to Practice Direction No. 6, in order to assist the Commission in determining whether the proposed consent award provided equal remuneration and other conditions of employment for men and women doing work of equal or comparable value as is required under s 23 of the Act. 262 Mr Irving's affidavit at the time indicated that the award did comply as did the affidavit sworn by Ms Simpson which also stated that the award represented a "substantial step towards providing equal remuneration for men and women but that further work could be done in this regard particularly in the area of casual and temporary teachers." 263 Mr Irving also referred to the reasons for judgment published by the Commission and the summary of the positions of the parties in relation s 23 at pages 210-211. 264 Mr Irving then provided various analyses of statistics concerning the employment of teachers as a consequence of information requested from the Department's Personnel Directorate. That the results of those analyses were set out in Annexures 26 to 33 attached to his affidavit. 265 Annexure 27 shows the gender breakdown of permanent teachers employed by the Department and since 1999 there has been slight increase in the proportion of female permanent teachers from approximately 62% to 65%. Annexure 28 shows that permanent teachers who are female has been reasonably steady at around 75% over this period of time. 266 Various other Annexures detailed the total number of teachers employed in various classifications. 267 It had been estimated that an additional 10,043 temporary teachers would be employed if the minimum period of employment for a part time temporary was reduced from two terms to eight weeks. That estimate was obtained by determining the number of casual teachers who in 2001 worked on a part time basis in one school for periods of 8 to 20 weeks and who would be classified as temporary teachers under the Federation's application. 268 Statistics were also provided on the numbers of temporary teachers with active applications for permanent employment. The figures available for 2001 were that 57.8% of female and 58.1% of male TSTs were seeking permanent employment. Of temporary teachers employed in the pay period ending 23 May 2002, 60.7% of female and 50.3% of male temporary teachers were seeking permanent employment. 269 Information in Annexure 32 showed the number of casual teachers employed by the Department in 2001 and in the pay period ending 24 May 2002. This pay period was chosen as it is during the peak period of employment for non permanent teachers. The figures show that in general, approximately 80% of casual teachers are female. 270 Annexure 33 showed that there were 1,989 instances where a teacher worked in 2 or more employment categories in the one school and in the same period there was a total of 17,488 temporary and casual teachers employed. The majority of the instances of combinations of employment occur where a teacher is permanent part time at the school, however, the analysis did not indicate whether the teacher was performing the same duties in all employment categories. 271 Mr Irving indicated that in relation to the figures provided in his Annexures concerning casuals those figures had been obtained through a specific computer program that was caused to be written to extract relevant information from the Department's payroll system. 272 The analysis of temporary teachers seeking permanent appointment involved cross-referencing serial numbers of temporary teachers with those seeking permanent employment. The Departmental officers engaged in carrying out the process were programmers with expertise in statistical analysis who extracted the information from both the payroll and personnel systems. No analysis had been requested or carried out for a comparison figure of temporary teachers in 2001 with 2002. 273 Mr Irving concluded that the agreement between the Department and the Federation which was the framework for the 2000 consent Award provided for a package of salaries and improvements and was endorsed by members of the Federation in June 2000. There has been no increase in the hours of duty or teaching loads of teachers under the award. The award provided significant improvements in the working conditions of school teachers such as an increase in the number of year advisers, the reclassification of executive teachers to assistant principals and the introduction of temporary school teacher classification. 274 The agreement was a "package" that could be delivered by the Department within the total available funding for the award and in the public interest. A protracted arbitration in the Commission was able to be avoided. As part of that agreement, the parties agreed that for temporary teachers access to the full CISS would be phased in over 5 years providing a responsible and appropriate approach to implementing major changes to the non permanent teacher workforce. The phasing in arrangement should be allowed to run its course. 275 During cross examination, Mr Irving's evidence as to the statistics contained in the various Annexures to his affidavit was challenged generally on the basis that that material was hearsay as Mr Irving had not extracted the information himself but had instructed Departmental officers to carry out that task. There as no evidence or information as to how that material had been provided or what it was based. 276 The Commission also asked questions of Mr Irving as to what type of engagement was included in numbers provided of casual teachers who worked periods between eight weeks and 20 weeks and who would be affected by the Federation's application should that application be granted. 277 Mr Irving was unable to indicate whether the figures that he had provided in his Annexure of the headcount of such teachers included both long term casual teachers (working continuously) as well as casual relief teachers who might on the conclusion of a short term engagement in a school be offered another engagement the next week to relieve other teachers etc. and this ended up working a series of relief engagements exceeding eight weeks. 278 Mr Irving filed a subsequent affidavit (Exhibit 81) on the 18 July 2003 in which he deposed that: · the statistical material that had been provided in his Annexures and in particular the figures relating to the estimate of the additional number of temporary teachers who would be employed if the Federation's application was granted had been extracted from the Casual Employees Payroll System (CEPS) by officers of the Department's Information Technology Directorate. · the data provided by the Information Technology Directorate was as follows: female casual days worked was 227,628.18 with a headcount of 8,074; male casual days worked was 61,809.90 with a headcount of 1,969; a full time equivalent was then derived by dividing the total casual days worked in 2001 by 202. The information was extracted on a fortnightly basis, data included casual teachers who were employed at the one school for multiple reasons. · when extracting that data on casual teachers it was not possible to distinguish between those sequential short term engagements where a teacher was employed to cover a number of positions for varying reasons which would have been known in advance for the engagement occurring and would have been treated as one temporary engagement and those sequential short term engagements where no advance notice would have been given such as sick leave, therefore all casual engagements of a sequential short term absence were included in the information provided in Annexure 30. 279 Mr Irving also deposed that the costings information provided by Mr Taggart in his affidavit had been provided by officers of the Department's Finance Directorate. That information had been extracted from the payroll system. There are two in-house "payroll systems" operating for different categories (other than TAFE), the Permanent Employees Payroll System (PEPS) operates in an IBM AS/400 computer environment and pays permanent and temporary school teachers and administrative staff etc. The Casual Employees Payroll System (CEPS) also operates in an IBM AS/400 computer environment processes pay claims for casual school teachers and other casual employees (other than TAFE). He explained that both those systems have reporting and record retention capabilities which allow the Department to access the range and format data as required. 280 The analysis of the payroll information was done based on the claims in the Federation's application. Accordingly, all costing schedules used payroll reports from actual temporary and casual teaching data and were not done on an "guesstimate or an averaging basis".

[102]

The basis of the daily rate for a CST was the rate applicable at step 8 of the CISS divided by 203 plus a 5% loading as provided for in clause 28.6. Therefore, incremental progression for a CST ceases at step 8 of the 13 step CISS. The new TST provisions appropriately reflected that the work performed by TSTs was of equal or comparable value to the work performed by permanent teachers, however, the operation of clause 27.5 unfairly and unreasonably discriminated against TSTs by not recognising all prior service of a TST in determining where a TST should commence (as a TST could not commence at any higher level than step 8 irrespective of their prior service as a permanent teacher) and continue on the CISS compared to the equivalent permanently appointed teacher. A permanently appointed teacher has all prior non-permanent service taken into account when assessing the appropriate CISS salary level at which the permanent employment is to commence. Clause 27.5 effectively restricts the amount of prior non-permanent service that is taken into account when a TST commences as shown by the evidence of Ms O'Halloran.
The Amery decision demonstrated that the complainants had satisfied the Tribunal that the Department required the complainants to comply with a requirement or condition, namely permanency to access the CISS above level 8. It was a requirement or condition with which a substantially higher proportion of men comply or are able to comply than women. The requirement or condition was not reasonable having regard to the circumstances of the case and was one with which the complainants do not or are not able to comply.
Amery had also considered in detail the work value issue and concluded that the work value of CSTs working for a period of eight weeks was of equal value to that of permanent teachers. The decision also rejected the Department's interpretation of the word "or" in the phrase "do not or are not able to comply" in s24 of the ADA. The Department had relied on the element of choice whereby CSTs limited the geographical area in which they were prepared to seek permanent employment to answer the element of the claim that the casual teachers do not or are not able to comply with the requirement. The Appeal Panel of the Tribunal dismissed the majority of the Department's appeal points but found that the complainants had not demonstrated that the requirement was not reasonable. However, the Court of Appeal upheld the decision at first instance on a number of grounds finding that the work value of casual teachers in question was equal to that of permanent teachers and that the requirement to comply with permanency as a condition was not reasonable and therefore discrimination had occurred. Work value of CSTs and TSTs

[103]

283 As to work value, the Federation submitted that:

The work value function of the Commission was correctly set out in Re Crown Employees, (Scientific Officers - Division of Science Services, Department of Agriculture) Award [1962] AR 250 at 278).
The principle of comparators in work value assessments was to be found encapsulated in Re Metalliferous Miners' etc. General (State) Award [1928] AR 466. In these proceedings where the comparator for non permanent teachers is permanent teachers obviously working in the same industry, there was no doubt that the work is fairly comparable.
The evidence of the 24 teacher witnesses in this matter who gave oral and affidavit evidence as to the value of the work they performed was not diminished in cross examination, notwithstanding that a significant proportion of the Department's cross examination was directed at work value issues. That evidence clearly established that the work of CSTs and TSTs working part time for eight weeks or more is the same as and/or is equal or comparable to that of permanent teachers. In addition the evidence showed that those CSTs and TSTs performed duties outside of school hours and/or that extended beyond the immediate classroom. The evidence also showed that non permanent teachers continued to suffer a pay disadvantage.
The Department, through its evidence, did not seek to undermine the substantial evidence of the teacher witnesses, and in particular, the Department did not call any school based witnesses to give direct evidence of CSTs or TSTs performing work of lesser value than permanents. The Department essentially agreed with the contention that longer term casuals (and by extension TSTs) performed work comparable to permanents. None had direct involvement in observing the work of TSTs and most had not worked in a school setting within the previous 12 months. There was also no evidence about their own experience as teachers. Further, there was no consistent identification of the point in time prior to which the work of non permanent teachers was not equal to that of permanent teachers.
The issue of the work performed by teachers those CSTs and TSTs was not a matter that rendered the requirement of permanency reasonable for the purposes of assessing whether there is unlawful discrimination. Alternatively there was nothing in the award making processes or other conditions of employment that justified the continued disparity in the remuneration between non permanent and permanent teachers.

[105]

285 As to the basis of the applications being s 169(4), the Federation made the following submissions:

In relation to s 169(4), the Act contained a number of provisions dealing with discrimination and they were referred to in summary form. In addition the Commission had also considered anti discrimination issues in the following cases: State Wage Case 1999 (1999) 88 IR 363; Review of the Principles for Approval for Enterprise Agreements 2000 (2000) 101 IR 332; Re State Working Hours Case 2003 (2003) 124 IR 253; State Personal/Carer's Leave Case 1998 (1998) 84 IR 416.
The question of unlawful discrimination in these proceedings should be considered on the evidence in the context of the legal principles that the Commission has previously applied.
The Commission should apply the rationale and principles in Amery and find that the Department requires and continued to require CSTs and TSTs engaged part-time between 8 and 20 weeks to comply with the requirement or condition of permanency to immediately access the full CISS rate in the same way as permanent teachers with the same service. This requirement or condition was one with which a substantially higher proportion of men comply or are able to comply than women. That the requirement or condition was unreasonable having regard to the circumstances of the teachers concerned and that the requirement or condition was one with which those teachers do not or are not able to comply.
The Commission should conclude that the requirement of permanency constitutes unlawful discrimination and that the 2000 consent Award and the 2004 Award ought to be varied to remove that unlawful discrimination.
The evidence indicated that a substantially higher proportion of men continue to comply with the condition of permanency than women. A summary of the relevant data for 2001 showed that the total number of female permanent teachers was 35,315, out of a total number of female teachers 60,492, the percentage of female teachers with permanency was 58.7%. The total number of male permanent teachers was 17,204 out of a total male teachers 22,518, with the percentage of male teachers with permanency 76.4%. Those figures demonstrated that a substantially higher proportion of men than women do or are able to meet the permanency requirement. This method of calculation was endorsed by the High Court in Australian Iron & Steel Pty Limited v Banovic (1987) 168 CLR 165.
The agreement between the parties and the resulting 2000 consent Award was not sufficient to negate the finding of unlawful discrimination. The Federation acknowledged that as the present application was made only after the Amery decision found that unlawful discrimination existed in the 1996 Award and that it appeared that the Federation had consented to unlawful discrimination continuing in the 2000 consent Award. However, the Federation contended that the agreement and 2000 consent Award was made in settlement of the dispute between the parties and that this should not be an impediment to making the variation sought.
The requirement of permanency continuing would at most constitute an argument against retrospectivity of the variation. However, such an argument is not compelling because it would leave the Commission to sanction unlawfulness.
Teachers who gave evidence in the proceedings had demonstrated that not only is the condition of permanency a condition with which they aren't able to or do not comply but that the reasons limiting the geographical areas in which they are able to accept permanent appointment are not merely lifestyle choices (although that in itself would not preclude a finding of discrimination) but also originated from the teacher's personal, family and professional responsibilities. Geographical limitations on the area to which a teacher is seeking permanent appointment is only one of several variables that affects a teacher's opportunity for permanent appointment, removing that variable, that is, by accepting appointment to anywhere in the State still leaves the other variables in place and cannot guarantee a teacher permanent appointment. Ms Macauley agreed with figures which roughly indicated that the maximum number of new permanent appointments each year is in the 3000 range and on a simple mathematical calculation it would take 5 years for the 15000 non permanent teachers who area seeking permanent employment to be employed, even assuming that all of those positions were suited the existing pool of teachers seeking permanent appointment. It was not demonstrated in Amery and had not been demonstrated in these proceedings that election by a teacher to seek permanent appointment without any geographical limitation would necessarily guarantee that teacher permanent employment within a specified time frame.
The evidence established that for a not insignificant number of teachers there was availability of ongoing work and which for various reasons is provided only on a non permanent basis the effect being a limitation on those teachers' conditions of employment notwithstanding their work performance was equivalent to that of permanent teachers. This discrimination would be removed by the variations proposed by the applicant.
It was conceded that in the earlier interlocutory decisions in this matter the Commission had indicated that even if the Federation had demonstrated that the precondition in s 169(4) existed, the Commission still retained a discretion as to whether it would reopen and vary the 2000 consent Award. Whilst this was a correct statement in principle, the Federation contended that having found unlawful discrimination the Commission would exercise its discretion to remedy the discrimination from the earliest possible time. Special case and public interest

[108]

290 The Department submitted that the amended application of the Federation raised an entirely new case. They contended that the original application was made pursuant to s 169(4) of the Act to vary the 2000 consent Award during its currency so as to remove any unlawful discrimination arising from it even though there was in existence a no further claims agreement, whereas the application now before the Commission was a new claim based on the assertion that there is a special case that the work of CSTs and TSTs is of equal value to the work of permanent teachers. 291 The Department also made the following specific submissions, broadly responding to the Federation's submissions:

The Federation has sought to make a work value case in circumstances where it entirely overlooked the need to consider in any work value assessment a comparison of the nature of the work and responsibilities of the benchmark group, in this case permanent teachers, with the group subject to the application as well as the conditions under which work is performed by the benchmark group when compared with the subject group.
These considerations arise particularly as a consequence of the Pay Equity Enquiry and the Report to the Minister (Volume 12, 14 December 1998, page 188.)
The Federation had contented itself with bold assertions of comparability and equivalence without more substance to its case. Its reliance on Amery was misplaced as it was not authority for anything whereas the appeal decision was authority for the proposition that the Department had not been guilty of unlawful discrimination. Whilst the Court of Appeal had upheld Amery the Department had lodged an appeal from that decision in the High Court. As we have noted earlier, on 27 May 2005 the High Court granted the Department leave to appeal.
The Department submitted that when the nature of the Federation's application was considered then the appropriate class or pool from which the comparator group would be chosen in the circumstances of the application was not permanent teachers at all but temporary school teachers as presently defined. The appropriate pool for comparison was then male and female temporary teachers with the question for determination being was there a greater proportion of temporary teachers who are male rather than female. The answer was no and indeed was the reverse. For the period ending 23 May 2002 there were 6,004 female temporary teachers and 1,019 temporary male teachers so as far as the agreed group was concerned there was no evidence of any gender bias.
The concept of phasing in arose as part of a compromise that for whatever the reason resulted in the parties agreeing that access to rates equivalent to the CISS should be phased in for temporary teachers over a period. The result of that agreement with respect to temporary teachers was to gain for them substantial improvement in their salaries and conditions without having to resort to arbitration where the outcome may well have been problematic, the 2000 consent Award was made at a time when the decision in Amery was reserved and the Department could well have been confident of success. Its conduct therefore in making some concessions for this group was clearly perfectly reasonable and accepted by the applicant as is evidenced by the consent award itself. Those considerations ought for themselves be sufficient to depose of the claim based on unlawful discrimination.
The only other relevance of Amery to this matter was that the parties agreed to admit the evidence in Amery as evidence in these proceedings. Without that agreement the evidence would have been inadmissible. Any conclusions about the effect of that evidence by the Tribunal is irrelevant.
In the 20 years since the decision of Bauer J, endorsed on appeal by the Full Bench, that there was no parity in work value between permanent and casual teachers that award has been the subject on more than one occasion to review and ultimately agreement. No attempt has been made to demonstrate any change in the work or conditions since 2000 to justify the application sought on work value principles. Indeed the evidence of the Department is uncontested that in the past 8 years the work done by casual school teachers has continued unchanged.
The proper operation of the Commission's award making function, required that there be strict observance of the agreements and undertakings given by parties relying on Re Corrections Health Service Nurses' (State) Award (1999) 90 IR 235. In this case not only was the award the production of an agreement between parties but the agreement provided for a phasing in over time of the access. In the absence of a finding of unlawful discrimination no compelling reason arises to justify the variation sought. Since the decision of Bauer J there were few categories of employees in New South Wales who have had their wages and conditions of employment as carefully considered as school teachers; the history of the various cases over the years as detailed in Mr Irving's affidavit was relied on.
There was an application before the Commission for a new Award, and it was unknown what if any other work value changes in the work of either permanent casual, or temporary teachers would be asserted. There was no evidence before this Commission of any change in work value of either permanent, temporary or casual teachers. That illustrated the evidentiary vacuum presently confronting the Commission in this application. The Department in this application and in the Amery proceedings had attempted to perform the task of providing evidence that would enable the Commission to properly assess the work value of differing groups or classes of casual teachers thus addressing the criticism of Bauer J in 1983 to evidence.
Generally the evidence for Departmental officers called was that as the time spent at the school by a casual school teacher increased then the value of the casual teachers similarly increased and by the time the teacher had completed an engagement for a year the value of that teacher was approximately the value of a permanent teacher.
In contrast the Federation's case consisted of nothing more than repeated bold assertions of equivalence. There was no identification, only assertions that the specific point at which the work of non permanent teachers engaged for 1 to 4 days per week is comparable to the work of permanent teachers, is eight weeks, which was the point identified in the Amery proceedings.
However, there was no consideration in Amery of part time engagements. The eight weeks claimed was with respect to periods of full time employment and this was reflected in the examples that the Federation referred to. The evidence of the various principals in Amery all referred to casual appointments of eight weeks or longer as achieving complete parity with permanent teachers and whilst one of the examples was silent on whether the casuals referred to were full time or part time, the context would suggest that the teachers concerned were in fact full time.
The effect of the 2000 consent Award is that if teachers work full time for 4 weeks or more they would be classified as temporary teachers. That agreement in so far as the Department was concerned effected a concession. It was not an acknowledgement that the work value of temporary teachers after 4 weeks full time is equivalent to permanent teachers and the evidence of the Departmental witnesses called is to the contrary. It further follows that the concession by the Department in 2000 was generous and ought not to be viewed as the basis for further change.
It was emphasised that all the witnesses called by the Federation agreed that there was a world of difference between the work of a casual teacher who was formerly classified as casual relief and a temporary teacher who was formerly classified as a casual teacher, and no witness suggested otherwise. The Department also refuted the position maintained by the Federation that the casual school teacher rate is obtained by dividing the salary at step 8 of the CISS by 203 and adding a 5% loading. The Department maintained the daily rate for casual school teacher was to be found in the casual school teacher scale at Schedule 6 Table 1 of the Award.
Temporary school teachers were paid on the basis of an agreement. Casual school teachers were not paid the same rate of pay as permanent teachers because their work was not of comparable value. Casual school teachers engaged on a part time basis for a period of between 1 and 4 days per week and for less than two terms do not do work of equal or comparable value to permanent teachers. The agreed school teaching provisions ought to be maintained because if the provisions are not unlawfully discriminatory within the meaning of that expression in the ADA there is no basis at all for change.
The Department referred to the Amery decision and relied on the fact that that decision had failed on appeal. On the facts before the Commission the Department submitted that there was no evidence that the conduct of the Department was grounded in sex as the ADA required. As a matter of construction the literal interpretation of the statute requires a determination that the asserted unlawful conduct to which s 24 applies is only unlawful if it is carried out on the grounds of sex. It was not open to promote a non literal construction in circumstances where, as is the case here there was no ambiguity. It could not be said that there was ambiguity. There was extensive evidence of the Departmental employment processes and the variety of reasons why the Department needed to maintain flexibility in its workforce by employing casual and temporary staff.
There was no condition or requirement of the kind specified as being a necessary pre-condition. To categorise permanency as a requirement or condition is to entirely ignore the fact that permanency is nothing more than the result of the acceptance of a vacant position. There was no barrier to incremental progression as was asserted but two separate pay scales, each one being separately appropriate for the respective appointments contemplated. A significant proportion of applicants for temporary appointment were not applicants for permanent appointment so it was simply impossible to say that a substantial higher proportion of persons of one sex were able to comply with whatever the requirement was said to be than persons of the other sex. The conduct of the Department in employing casual, temporary and permanent employees to satisfy the Department's statutory obligations with respect to the children in its charge was entirely reasonable.
The Department submitted that much care needed to be taken in using the Amery evidence in this application because that case essentially proceeded on the assumption that what was being dealt with was full time employment in blocks of eight weeks or more. There was no attempt by either party to establish what was the value of part time work for 1, 2, 3 or 4 days per week for eight weeks and how it differed if at all from full time work for that period nor was there any attempt by the complainant to establish just what it was a permanent full time teacher did. It was in that context that evidence was given and indeed some of it not cross examined upon. The Federation bore the onus, and did not discharge that onus of establishing what was referred to in connection with eight weeks.
The Federation referred to permanent teachers as the comparator for non permanent teachers but apart from assertions, no evidence was called to establish the work of permanent teachers to test against that comparator the work of each casual teacher in circumstances where they were working for one to four days per week for eight weeks or more to determine whether the casual teachers were doing work of equal and comparable value.
Generally the Department contended that the evidence of the Federation did not establish its claim and that the overwhelming majority, if not all, of the evidence of the Federation's witnesses in relation to the work that they performed was work that was now categorised as temporary under the temporary teacher classifications introduced under the 2000 consent Award. As far as evidence as to part time casuals was concerned that related to examples that appeared to extend beyond two terms and therefore that work being done now would qualify for payment as a temporary school teacher. The Federation bore the onus of establishing its case and had not discharged that onus.
The assertion that non permanent school teachers continued to suffer a pay disadvantage was disputed. No pay disadvantage was suffered, as non permanent teachers are paid an appropriate rate for the work that they do. On the evidence given as an example of a teacher working both part time and casual no attempt was made to equate the value of the work done whilst working as a permanent part time teacher with the work as a casual teacher. The number of teachers who are paid according to the 2 different scales is a very small proportion of the total represents an insignificant number.
The assertion that the Department had called no school based witnesses was refuted as in part that was unnecessary by the tender of the evidence from various Amery cases which included evidence of Principals led by the Department. In addition, in this matter evidence was given by more senior officers including 2 District Superintendents who have had long experience both as teachers and principals as well as other senior officers who also each had extensive teaching experience as teachers and principals. All witnesses expressed an opinion teachers working part time for periods less than two terms would not be doing work of equal or comparable value to permanent teachers.
In contrast the Federation made no attempt to call any supervisor of casuals, such as a Head Teacher, Deputy Principal or Principal and certainly no officers senior to that but contented itself with reliance upon casual teachers who if they had permanent experience it was mainly a distant past.
The Department considered irrelevant the submission that most of the Departmental witnesses had not worked in a school setting within the previous 12 months. The Department rejected the Federation's contention that their witnesses had not identified in any consistent way a point in time prior to which the work of non permanent teachers was not equal to that of permanent teachers. This entirely reversed the onus and ignored Bauer J's decision of 1983 and all the evidence of the various Departmental witnesses who consistently identified the equivalence as occurring at a point the main only after a year.
Cost was a relevant consideration in the proper exercise of discretion. The cost of this application would be substantial and the circumstances where what is sought by the application is to set aside an agreement reached between parties, this is a factor which heavily weighs against the exercise of discretion.
In considering discrimination, the starting point was whether or not discrimination had occurred, whether the impugned conduct was carried out "on the grounds of sex". The Act was very clear, it was not ambiguous or obscure and adopting a literal interpretation did not lead to a result which did not promote the purpose or object statute or lead to a result that is manifestly observed or unreasonable. The Act was about elimination of sex based discrimination. In considering the reasonableness of the requirements of permanency of the Federation had not dealt with the overriding statutory obligation of the Department to educate the children of the State. In addition no issue was taken with the various procedures related to staffing required to be brought about as a consequence of partly that need and partly the need to provide for conditions of employment which had been gained for the Federation's members.
There had been no finding of unlawful discrimination by the Department and that assertion was rejected. The evidence plainly demonstrated that the Department always acts and has acted in a gender neutral fashion having as its primary focus the provision of educational services for the children of the State. The Department at all times acted with probity and in good faith.
The application could only be dealt with by considering the evidence and applying the appropriate principle. The application by the Federation was said to be founded on a requirement or condition imposed by the Department that was the requirement of permanence. However, the Department in this context requires nothing. It proceeds as it is required by law to apply the statutory instruments that control it. It is inadmissible for it to proceed in any other way. There was no requirement or condition imposed by the Department as alleged. If a teacher applies for and is accepted for appointment to a vacant position then that teacher will be paid according to the appropriate scale, the CISS for permanent teachers of 13 steps. If a teacher is not so appointed and works for the Department as a teacher then the teacher will be paid in conformity with the pay scale for a casual teacher or the pay scale for a temporary teacher.
The application is based on the pleadings in Amery but the legal matrix which now exists is different than existed at the time of the Amery decision when the temporary school teacher provision did not exist. The disparity in wages and treatment between permanent and casual teachers under the 2000 consent Award originated in the 1983 arbitrated decision of Bauer J which was made after a careful examination of the work done by permanent and casual teachers. The disparity was found in the value of the work and that difference has been maintained over the last 20 years in every arbitrated or consented arrangement that has followed.
An examination of the reasons why the various witnesses did not seek permanent employment was based on a variety of choices that they wished to make. The Department did not disparage the choices made by those witnesses, it was a matter for them. It was also pointed out that the number of female applicants were now in permanent employment. The Department had never asserted that seeking appointment without any geographical limitation would necessarily guarantee employment on a permanent basis within any specified time frame. However, all witnesses agreed that when they limited their choices of schools where they were willing to teach they necessarily reduced their chances of permanent employment.
It was plain that the work value of a non permanent teacher when compared to a permanent teacher is different. A casual relief teacher working for a day having the least comparability than a casual teacher working for a year having the most. The agreement between the parties did not concede comparability but provided for non permanent teachers working 4 weeks or more full time or part time for two terms or more to be paid the same rate as a permanent teacher. The effect of that agreement was to reduce the disparity.
There has been no evidence to specifically identify and compare the work of the group that was sought to be affected by the variations sought with the work of permanent teachers, therefore, there was no basis for treating this application as satisfying the requirements of a special case.
As to public interest the Federation had applied for a new Award wherein the work of permanent teachers would be examined and a comparison would be able to be made with respect to the various classes of non permanent teachers. These proceedings should not go forward in an evidentiary vacuum but should be finally dealt with after that application had been finalised. There was a strong public interest in parties being encouraged to adhere to the various agreements that they made particularly those entered into after lengthy negotiations by parties well used to the bargaining process. There was also a strong public interest in the promotion of the objects of the Act which included encouraging and facilitating cooperative workplace performance to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments. Submissions by the Applicant in Reply 292 The Federation made further submissions in reply to the Department's submissions. These were:
the Department's criticisms of the quality of its evidence was misplaced and re-emphasised the evidence about out-of-school hours and additional work performed by the witnesses went to one of the essential issues recognised in the 1970 Teachers case about teachers performing out of hours work.
The significance of the Federation's evidence on the equality or comparability of permanent, casual and temporary teachers was necessary to satisfy the Commission that phasing in of the CISS for TSTs produced an unjust and unreasonable result.
Given the detailed evidence of the teacher witnesses, the duties, skills and experience involved the Commission would be satisfied that by those statements of comparability they were not distinguishing between the nature or length of the engagement.
The fact that the teacher witnesses may have performed either part-time or full time work bringing them under the temporary teacher provisions did not reduce the efficacy of their evidence in relation to the value of work performed prior to four weeks full term or two terms part time.
Recognition of past service for assessing the correct increment level for TSTs on the same basis as permanents is most likely to produce consistent results.
The evidence was appropriate to the issues being pressed and any criticism as to lack of specificity was not only incorrect but wrongly assumes a principle or practice in this Commission that the minutiae of work must be examined in order to assess comparability.
The Federation accepted the evidentiary onus it bore but stressed that the Department failed to address any evidence to refute the Federation's evidentiary case was a relevant matter for the Commission to consider.
As to the Amery evidence it was refuted that there was no evidence of part-time work as claims of the complainants did include such evidence.
The Federation further summarised relevant evidence in Amery that supported its claims and submitted in conclusion that the evidence and transcript of the Amery proceedings supported the position contended for in these proceedings, namely that eight weeks is an appropriate point from which it may be accepted that the work of part-time casual teachers is of equal or comparable value to that of permanent teachers.
The Federation rejected the assertion that non-permanent teachers had been adequately scrutinised over a sixty year period. This ignored the absence of any explanation of the casual rate struck in 1955; no evidence prior to 1983 about the extent to which non-permanent teachers worked on fixed term engagements and the absence of any evaluation of non-permanent work since 1983.
Further the history ignored the relevance of introduction of the ADA in 1977 and the subsequent 1994 amendment.
Notwithstanding the wage fixation history the presence of discrimination in the 2000 consent Award of either discrimination or inadequate remuneration of non permanent teachers was sufficient.
The Department misconceived the nature of the work value claims being made. It was not alleged that there had been a change in work value nor was the case based on change. Rather the claim was for a failure to provide terms and conditions of employment to non permanent teachers whose work was of equal or comparable work to permanent teachers.

[109]

The task of identifying an appropriate period of time was not easy and eight weeks may not address all anomalies but in the Federation's view was appropriate in the circumstances to eliminate existing inequities subject to TSTs having prior service recognised to enable immediate access to the full CISS. Another alternative was to translate the 20 days after which a full time non permanent teacher becomes temporary into different periods for part time non permanent teachers: 5 weeks for 4 days teachers, 7 weeks for 3 days teachers, 10 weeks (one term) for 2 day teachers and 20 weeks (two terms) for one day teachers. The present award prescription in effect adopts the translation period for one day teachers for all part time non permanent teachers. The eight week period suggested by the applicant is roughly equivalent to the median figure for all part time non permanent teachers.
The assertion of the Department that the introduction of the 4 week full time TST as a "concession" was rejected as not being supported by any evidence and indeed was contrary to Mr Irving's evidence about recognising and rewarding the valuable contribution made by longer term non permanent teachers with enhanced provisions of employment.
Even if the 4 week full time TST provision was a "concession" it effectively caused inequities for part time casuals employed for eight weeks or more. It was therefore appropriate to reduce the length of time required for a part time casual to be appointed as a TST and accept the claim as sought.
The Department's submissions that parties should "adhere to agreements" is mitigated by the existence of the special case principle and section 10 of the Industrial Relations Act, reflecting the legislature's intention that this Commission should have the capacity to review terms and conditions of employment and where appropriate ameliorate existing inequities by varying agreements. See also Re Public Hospital Nurses (State) Award (No 3) (2002) 121 IR 28. In any event, this submission only affects the claim in so far as it is based on unlawful discrimination, as no variation retrospective to the expiry of the award was sought on any other grounds.
The Department emphasised that the phase-in period enables access to the top of the CISS at the beginning of 2005 but produced no figures as to the actual effective outcome for various categories of teachers. In contrast the Federation provided summary detail in relation to the 24 teacher witnesses based on the Exhibit 14, Agreed Facts, which demonstrated a variety of outcomes in time in relation to finally accessing the full CISS that showed it would not automatically occur in 2005.
The fact that the phasing in was agreed does not prevent the Commission varying the award after expiry of its nominal term and this was unaffected by the fact that the phasing in extended beyond that term.
The Federation rejected the Department's submission that the appropriate comparator was TSTs. This ignored the two aspects of discrimination of eight week CSTs who performed work of equal or comparable value to permanent teachers and the failure of the Department to categorise such CSTs as TSTs and provide immediate access to the full CISS.
The appropriate comparator was permanent teachers. It would be inappropriate to use a group (TSTs) whose own provisions were inadequate or discriminatory.
The conduct of the Department that was discriminatory in relation to part time CSTs working more than eight weeks was that their work was comparable or equal to that of permanent teachers. It was irrelevant that TSTs had achieved better although not complete equivalence of conditions with permanent teachers. It was discriminatory given the gender ratio of casual and permanent teachers to limit the amount of remuneration available to CSTs.
The Department appoints permanent part time teachers working from one day per week, gives them full access to the CISS and recognises all prior service. That was the appropriate comparator group in the circumstances not permanent full time teachers.
The Federation concluded by saying that the Department had submitted that the education of children was a matter relevant to reasonableness yet it failed to establish how the education of children would be adversely affected by this application being granted. This application does not seek the withdrawal or reduction of non permanent teachers but seeks to remove as far as possible any discrimination or inequity in their conditions of service. If teachers are doing the same work, the nature of their tenure (casual, temporary or permanent) should not affect the remuneration paid to them. 293 The parties filed further written submissions concerning the Court of Appeal decision in Amery. 294 The Federation contended that the decision not only weighed entirely in its favour but found against the respondent in many of its contentions relied upon in this matter. 295 The Federation submitted that there was no impediment to the Full Bench delivering judgment in this matter. The prospect of a High Court appeal from the Court of Appeal decision should not delay any such judgment further as any such appeal would not be likely to be determined in the near future. Further it was submitted that the Federation's case was not dependent on the result in the Amery case. 296 The respondent in reply submitted that no reliance could be placed on the Court of Appeal decision until the appeal process was formally completed and confirmed that the State of New South Wales had determined to seek special leave to appeal to the High Court. 297 The decision in Amery did not create an issue estoppel as there was no identicality of parties. Further it would be contrary to the concepts of a work value enquiry conducted by the Commission for any reliance to be placed on findings in relation to work value in the Tribunal. 298 The Department noted that the Court of Appeal recognised that its decision would have no precedential value with respect to any of the issues relevant to this Commission: 103 It was accepted by senior counsel for the appellants (the teachers) that it should not be assumed that the Department would act unlawfully. However it is not a straightforward question as to whether the Department would be acting unlawfully if it did not then pay other women who performed work of equal value. The Tribunal's decision in favour of the appellants was made on the evidence before it. That evidence was limited in the way that has been referred to throughout these reasons. It is not readily apparent therefore that the Department will, if there is a decision favourable to the appellants, alter the pay scales of other female teachers in the same position as the appellants, or that it would be acting unlawfully if it did not. (Emphasis added) 299 The Department also submitted that the relevant issue for consideration in this application was "work value" which had to be resolved regardless of the Amery decision. That did not involve merely a comparison of the work involved but as Hodgson JA recognised the value to the employer of the work involved was of seminal importance. As a consequence of the control which may be exercised over them in relation to transfers pursuant to the Teaching Services Act 1980 and the Public Employment and Management Act 2002, permanent teachers are of greater value than temporary teachers. This was quite apart from the value of the actual teaching work performed.

[110]

300 At the outset, we will state our view that the Federation has failed to establish the threshold requirements to the variation of an award, either under s 169(4) or s 17(3)(c) of the Act. The paucity of evidence relating to the first subject group (non-permanent teachers employed in one engagement for one to four days a week for eight weeks or more) makes it impossible to substantiate the Federation's allegations of unlawful discrimination in relation to part-time casual teachers. Although there may be some evidence in support of the Federation's second claim, this evidence also suffers from a lack of distinction between teachers who have just qualified as TSTs and those who have been working as TSTs for some time and we remain unpersuaded that there are substantial reasons to vary the 2004 Award on either ground. In fact, there are powerful public policy reasons against doing so. We provide our reasons for these conclusions below. As a post-script, we note that it is not necessary for us to determine the Federation's primary submission that s 169(4) in and of itself empowers the Commission to vary an Award without regard to any other provisions in the Act. However, we observe that we have real reservations about this submission. 301 There are two aspects to the Federation's application - one dealing with the qualification of part-time CSTs as TSTs and the other dealing with the operation of CISS as it applies to TSTs. As already mentioned, while the applications relate to the 2000 consent Award and the 2004 Award, we will only consider the application as it relates to the 2004 Award given that the 2004 Award rescinded and replaced the 2000 consent Award. 302 As to the first aspect, the Federation proposes to reduce the period of engagement that a CST working one to four days per week (a part-time CST) must be engaged in before qualifying as a TST from two terms or more to eight weeks or more. The definition of TST in clause 2.55 of the 2004 Award separately deals with full time and part-time CSTs. That is, a person who is employed in one engagement full time for four weeks or more qualifies as a TST whereas a person working part-time must be employed in one engagement for two terms or more in order to qualify as a TST. The Federation is not proposing any amendment to the full time engagement requirement. The Federation is, however, proposing that a casual teacher working part-time would only need to be employed in one engagement for eight weeks or more in order to qualify as a TST for that engagement. 303 We understand that this change would apply in the same manner to any teacher who works as a CST from one to four days per week; that is, if a CST was to accept an engagement for one day per week for a period of 10 weeks, they would be regarded as a TST for that engagement. Similarly, if a CST was to accept an engagement for four days per week for a period of eight weeks, they would be regarded as a TST for that engagement. 304 As already noted, the TST provisions were introduced for the first time in the 2000 consent Award and replaced the previous classification of casual school teachers. We understand that the TST provisions were developed as part of lengthy and detailed negotiations between the Department and the Federation; were based on the submissions made at time of the consideration of the 2000 consent Award; and represented a compromise agreed between the parties. These negotiations took place at a time when the Amery proceedings were well under way, although the Tribunal had not handed down its decision. We further observe that the Federation chose not to bring the Commission's attention to the Amery proceedings during the consideration of the 2000 consent Award and indeed represented to the Commission that no term of the award offended s 23 of the Act. It is of concern that after giving such an assurance, the Federation has subsequently chosen to proceed in its application to vary the Award on this basis and for the reasons we will explain, we do not consider that the Federation's delay in canvassing all these issues during the making of the 2000 consent Award or indeed at the time of the making of the 2004 Award is justified by reference to the Amery proceedings or subsequent events. 305 As to the second aspect, the Federation has proposed replacing the existing clause 27.5 in 2004 Award. The existing clause 27.5 provides that TSTs who had been in receipt of a salary equivalent to Step 8 of CISS as a CST for more than 203 days would, on engagement as a TST on or after day one of term one 2001, be entitled to be paid the salary at Step 9 of CISS and then progress according to the award. This reflected that the maximum a CST could be paid was equivalent to Step 8 of CISS irrespective of any prior service as a permanent or casual teacher. It also required that a person must work as a CST for more than 203 days at a salary level equivalent to Step 8 of CISS before they could progress to Step 9 of CISS. The operation of clause 27.5 in this manner has been referred to as the phasing-in arrangements. 306 Other progressions on the CISS by a TST are covered by clause 27.4, which provides that: 27.4 Subject to the provisions of clause 26, Calculation of Service and the temporary school teacher demonstrating by means of an annual review, continuing efficiency in teaching practice, satisfactory performance and professional growth, a temporary school teacher shall be entitled to be maintained on the salary level for a promotions position or to progress to the next step of the common incremental salary scale in Schedule 1 following the completion of: 27.4.1 203 days of service as a temporary school teacher irrespective of breaks in that service; or 27.4.2 an appointment, full time, for a full school year. 307 The Federation is not seeking any amendment to clause 27.4 in the present application. 308 The proposed new clause 27.5 would vary its operation in two respects:

once a teacher is classified as a TST, they can immediately access the CISS rather than having to accrue 203 days work as a CST at a salary equivalent to Step 8 of CISS; and
a TST would commence on the CISS at the level determined by taking into account all of their prior non-permanent service as a teacher and not be restricted to commencing at Step 9 of CISS (assuming they had satisfied the 203 day requirement). 309 In effect this amounts to an unravelling or unwinding of the complicated arrangements agreed between the Department and the Federation which were reflected in the 2000 consent Award and were repeated without amendment in the 2004 Award. 310 Despite the lengthy evidence and submissions by the parties in this matter, we consider that the Federation's claim can in essence be framed by two questions:
Is there any basis to justify changing how the definition of TSTs applies to part-time CSTs?
Is there any basis to justify unravelling or unwinding the phase-in arrangements reflected in clause 27.5 of the 2004 Award?

[112]

311 The Federation has contended that it is appropriate to change the definition of TSTs as it applies to part-time CSTs as it continued to discriminate against CSTs engaged on a part-time basis for between eight weeks and two terms. The basis of this claim was the contention that the Tribunal determined in Amery that the work of a casual teacher for blocks of eight weeks or more was of the same work value as the work of a permanent teacher. 312 The difficulty with this contention is that the evidence presented to the Tribunal in Amery and the findings of the Tribunal in Amery did not distinguish between full time and part time casual teachers. The Department contends that there was no consideration in Amery of part time casual engagements. 313 We do not consider that Amery assists the Federation's claim in the way it contends. Amery was decided on the basis of the 1996 Award (and an enterprise agreement which preceded the 1996 Award), which did not include any provisions relating to TSTs. Further, the Tribunal undertook a limited analysis of the work value equation - without the usual benefit of inspections - and without sufficient recognition of previous Commission decisions as to the relevant factors to take into account in undertaking a work value assessment. We do not propose to attach any significance to the Tribunal's assessment of work values. 314 The Department has contended that the specific evidence presented to the Tribunal related to full time casual employment and, accordingly, the Tribunal's conclusions as to equivalence for engagements of eight weeks or more should only relate to full time engagements. It appears to us, however, that the evidence of at least two of the complainants in Amery related to part-time casual work. However, the Tribunal did not seek to determine the point at which such part-time casual work was equivalent to the work of a permanent teacher; instead they reverted to the general eight week period, presumably because of the way the case proceeded. Moreover, as we have already noted, the evidence in Amery, adduced as it was in the context of the 1996 Award (which did not recognise temporary school teachers), and based as it was on the category of casual supply teacher (a category no longer used by the Department) is of limited value to the present enquiry: that is, the extent to which there may be discriminatory differences between the subject group and the comparators in the operation of the 2000 and 2004 Awards. 315 It was incumbent upon the Federation in this matter to clearly identify any specific point at which the work of part-time CSTs could be described as comparable to the work of permanent teachers. Not only did the Federation fail to do so; with one or two limited exceptions, it failed to adduce any evidence distinguishing part-time casual teachers from full-time casual teachers, despite the critical nature of this distinction for its application. While the evidence of both Ms Maynard and Ms Pratt was that as a CST and TST, they each performed all the duties of a permanent part time teacher, it is not clear from the evidence for what periods of engagement this applied. 316 Ms Platt deposed that when she started working beyond a week she had to establish a strong amount of credibility with students and that this meant a lot of work. Ms Platt made these comments in the context of working one or two days per week. Ms Platt's further evidence ("If you are teaching one or two days, then you don't have the same number of duties as you [have] if you're teaching over a longer period") certainly suggested that some length of time would have to be allowed before the duties of part-time casual teachers could be equated to those of permanent part-time teachers, but left us in the dark as to what length of time that may be (beyond confirming that one year would be sufficient). Her evidence in Amery does not assist the Federation in this regard, based as it was on part-time casual experience from second term for the remainder of the year or "throughout the year". 317 While Ms Waters deposed that she expected the same level of involvement in her duties and responsibilities whether she was engaged for one term or two terms, it was not clear from the evidence whether Ms Waters was referring to part time or full time casual engagements. She also stated unequivocally in evidence that the extent to which the work of a part-time casual teacher approximated the work of a permanent part-time teacher was a function of the length of the engagement; the number of days per week worked; and the casual teacher's familiarity with the school. This evidence amply illustrates the complexity of the task facing the Federation in comparing part-time casual work of one, two, three, or four days a week (for varying lengths of engagement) with the work of permanent teachers. However, the Federation made little, if any, real attempt to tailor its evidence or submissions to reflect this complexity. 318 The evidence adduced by the Department further undermined the Federation's allegation of discrimination. Mr Kennedy gave evidence that the duties that could be expected or asked of a part-time casual teacher working one day per week for eight weeks (for example) could not be compared to the duties of a permanent teacher. Mr Kennedy's evidence that the fewer days per week a casual teacher worked, the longer he or she would have to work in the same school to experience a range of duties comparable to those of a permanent teacher, reinforced (a) the evidence of Ms Waters referred to above; and (b) the flaws in the Federation's evidence, referred to above. 319 In conclusion, the Federation's evidence was based on the subjective views of its witnesses comparing their work as permanent teachers (which had sometimes been as long as 5 to 20 years in the past) and their work as CSTs or TSTs with the work of permanent teachers. While most teacher witnesses listed an extensive range of duties and responsibilities, on the whole it was not clear whether this represented their accumulated experience over all engagements or whether it was specific to certain periods of time (and, if so, the length and nature of those engagements). In addition, many worked exclusively for one school, raising the issue of whether this level of familiarity may produce mutual expectations of additional duties which may not necessarily hold true for all CSTs or TSTs. This issue was not addressed in the Federation's evidence. With very few exceptions, the majority of the casual engagements referred to in evidence (as distinct from the true casual relief work indicated) were of sufficient duration to have qualified the casual teachers as TSTs, had the category been recognised at the time. As such, the evidence relating to the duties performed during these engagements fails to assist the Commission's understanding of the duties performed by casuals who do not qualify as TSTs in the present system. Finally, the Federation failed to call any evidence from permanent teachers or principals comparing the work and duties of CSTs / TSTs and permanent staff. As we have already noted, Amery does not assist the Federation in this respect. 320 Finally, we reject the Federation's criticism of the Department's school-based evidence on the basis that it was not sufficiently current (the principals having last served in 2000); in fact this experience was more relevant and recent than the experience of the Federation's witnesses as permanent teachers. 321 On the basis of the evidence presented by the Federation, we cannot be satisfied that the work value of part-time CSTs who work in engagements of eight weeks or more is such as would warrant the variation sought. Is there any basis to justify unwinding the phase-in arrangements reflected in clause 27.5?

[113]

322 The Federation has contended that it is appropriate to amend clause 27.5 as it:

continues the discrimination identified by the Tribunal in Amery as TSTs do not have all prior years of non-permanent service on engagement recognised and cannot immediately access all points on the CISS; and
does not provide wages and conditions of employment that are fair and reasonable. 323 It is also not clear to us from the evidence how the effect of the existing clause 27.5 is to provide wages and conditions that are not fair and reasonable. This essentially turns on whether the work performed by TSTs in the circumstances contended for is of comparable or equal value to that of permanent teachers such that they should be treated the same for the salary scale purposes. 324 It was incumbent upon the Federation to establish the equivalence of the duties of TSTs and permanent staff in order to further this second aspect of their application. As we have stated, TSTs were a new category created in the 2000 Award to overcome some of the discrimination against casual teaching staff. The effect of the 2000 consent Award is that if teachers work full time for 4 weeks or more they would be classified as temporary teachers. That agreement in so far as the Department was concerned effected a concession. It was not an acknowledgement that the work value of temporary teachers after 4 weeks' full-time work is equivalent to permanent teachers and nor did the Federation make this assertion at the time. We do not accept Ms O'Halloran's deposition that the 2000 consent Award recognised that the work of TSTs is equal to that of permanent teachers and that the work of CSTs was at least comparable if not equal to that of permanent teachers. Accordingly, the Federation has to rely on evidence after the commencement of the 2000 award (that is, evidence adduced in the present application) to establish its assertion of discrimination between TSTs and permanent teaching staff. 325 Although this aspect of the Federation's application has more substance than the first aspect, it is not without similar difficulties. These difficulties arise from the broad range of experience possible under the definition of a TST - from four weeks' full time work to two terms at one day a week - and the corresponding broad range of duties performed by or required of TSTs. 326 According to Mr Phipps the duties of TSTs engaged for short periods (such as one term) were not comparable to the duties of permanent staff. Mr Kennedy in particular gave evidence that the duties of a TST who had been employed for four weeks could not, in any way, be described as comparable to the duties of permanent staff. Mr Kennedy also gave evidence of a whole range of duties performed by permanent staff which non-permanent part-time staff would be unlikely to do. According to Mr Kennedy, the fewer days per week a non-permanent teacher worked, the longer he or she would need to work in the school in order to experience a range of duties comparable to those of a permanent teacher. 327 In contrast, many of the witnesses who gave evidence on behalf of the Federation, (most of whom had worked in the past as permanent teachers before interrupting service and recommencing as casual or temporary staff) described similarities between the duties expected of them as temporary staff and the duties they had previously performed as permanent staff (or the duties they observed permanent staff performing). Ms Francis deposed that her work as a CST/TST involved the same duties she had previously performed as a permanent teacher; but whilst there was a summary table, her evidence is silent as to how long she had worked as a CST / TST (and for how many days per week) before this equivalence of duties occurred. There are similar difficulties with the evidence of Ms Kyriakov and Ms Maynard. 328 In the absence of clear, convincing evidence that all TSTs (including those who had worked full time for four weeks only, and those who had worked for one day a week for two terms only) could reasonably be expected and required to perform duties equivalent to the duties performed by permanent staff, the second aspect of the Federation's application must fail. We do not consider that there is any such evidence upon which the application may be granted. 329 In summary, based on the evidence presented to the Commission, we are not satisfied that we can conclude that the work value of TSTs, as defined in the 2004 Award, is equivalent to that of permanent teachers. Accordingly, we are not satisfied that we are able to make findings, based on the available evidence, that the salary and conditions of TSTs are not fair or reasonable. 330 There being insufficient evidentiary basis for the Federation's allegation of discrimination, it is not necessary for us to consider whether an award can be varied on the basis of s 169(4) alone, without the applicant satisfying the Commission that the requirements of s17(3)(c) have been met; because, in our view, the requirements of s17(3)(c) have not been met. Nor would we exercise our discretion in favour of the Federation for the reasons described below. 331 The 2004 Award took effect from 1 January 2004 and expires on 31 December 2005. The award contains a "no extra claims" provision, although that provision is qualified by reference to permitted claims under the Act or under the "leave reserved" provision. The "leave reserved" provision is not relevant to the present applications. 332 Sections 169(4) and 17(3) (c) confer a discretion on the Commission to vary an award before its expiry in the specified circumstances. In considering whether to exercise this discretion, it is necessary for us to have regard to all the circumstances of the case. As the Full Bench noted in Re Crown Employees No 1: An important consideration to which the Commission would have regard is the conduct of the parties to the making of the award and the general policy reflected in s 16 and s 17 of the Act that awards once made should generally be permitted to run their term. It will be particularly relevant to have regard to whether the award sought to be varied was made as the result of an application which proceeded before the Commission by consent. We would concur with the observations of Wright J, President in Re Corrections Health Nurses (State) Award (1999) 90 IR 235 that it is "essential" for the proper operation of the Commission's functions in award making, and in particular the wage fixing principles, for the Commission to "ensure … the strict observance of agreements and undertakings given by parties".

Amery & Ors v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties

Cases Cited (21)