Amery v State of NSW

Amery v State of NSW - [2008] NSWIRComm 117 - NSWIRComm 2008 case summary — Zoe

[21]

7 The Department's case was that the Commission had no jurisdiction to make either the interim award, or the new Award sought by the Federation, given the provisions of s 19 of the Technical and Further Education Commission Act 1990 ('the TAFE Act') and the provisions of clause 43, No Further Claims of the current Award. 8 It was the Department's case that the proposed award was somewhat ambiguous. If the effect of the award sought was to impose an obligation on permanent TAFE teachers to complete a university degree, the award was beyond the Commission's jurisdiction; it could not impose such a qualification on teachers who were neither parties to the proceedings, nor to the dispute. If the award sought instead, to establish minimum teacher training requirements for permanent TAFE teachers, the effect of the new Award, in conjunction with other provisions of the current Award, would be to make appointment to a position as a permanent TAFE teacher, contingent upon the mandatory teacher training requirements imposed by the new Award being met. The imposition of such a prerequisite, was prohibited by s 19 of the TAFE Act. 9 The Federation's claims were also argued to have been pursued in breach of clause 43 of the current Award, because the new Award seeks to deal with teacher training, salary progression, employer support for professional development and reduction of direct teacher time, while training is undertaken, all matters already regulated by various existing provisions of the current Award. These claims all concerned conditions of employment, which were expressly prohibited from being pursued by the No Further Claims provision, prior to December 2008, when the nominal term of the current Award expires. 10 It was also argued that the interim award contravened the No Further Claims provision of the current Award, given that it, too, concerned conditions of employment presently regulated by the current Award. The Federations' case 11 The Federation argued that the awards which it sought were neither beyond the Commission's jurisdiction, nor in breach of the current Award's No Further Claim provisions. 12 The proposed Award was not ambiguous. Clause 4 required permanent TAFE teachers to acquire a 'higher education teaching qualification', as defined, within 2 or 3 years of commencing permanent employment. By clause 5, a teacher's salary progression was halted, if the qualification was not obtained. 13 It was submitted that the Commission had power to make awards fixing fair and reasonable conditions of employment under s 10 of the Act. Such an award was binding on all employers and employees, to whom it applied, whether or not a party to the making of the award (s 12). Qualifications of employees is a matter expressly given as an example of an industrial matter (see s 6(2)(c) of the Act). It followed that the claims made as to teacher qualifications clearly fell within the definition of 'condition of employment', defined in the Dictionary to the Act, as including 'any provisions about an industrial matter'. 14 It was accepted that s 19 of the TAFE Act has been found to prevent the making of awards dealing with the creation and appointment of persons to positions at TAFE, or to recruitment processes leading to such appointment. It was also formally submitted that the decision of the Full Bench in Re New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360, was wrongly decided and should be reconsidered, because, properly construed, s 19 of the TAFE Act was concerned with appointment to particular positions, not appointment generally, or the creation or filling of positions generally.

[23]

Consideration 18 There was no issue between the parties that both the interim and final awards sought by the Federation, concerned conditions of employment for permanent teachers employed by the Department at TAFE and that so long as such conditions did not impact on the question of appointment of such staff at TAFE, the Commission had jurisdiction to deal with the claims made. This reflected the provisions of s 10 of the Act, which empower the Commission to make awards 'setting fair and reasonable conditions of employment for employees' and the fact that s 19 of the TAFE Act is not concerned with conditions of employment, once a teacher is employed. 19 Section 12 of the Act provides: 12 Persons bound by award (1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. (2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry. (3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award. 20 Given the provisions of s 12, it is clear that contrary to the Department's submission, there is no necessity for teachers who might be affected by the proposed award, to be made parties to the proceedings, in order for the Commission to have jurisdiction to entertain the claims made by the Federation. The Federation is entitled to exercise the rights granted to registered organisations, by s 11 of the Act, which provides: 11 When award may be made (1) An award may be made: (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. (2) An application for an award may be made only by: (a) an employer, or (b) an industrial organisation of employers or employees, or (c) a State peak council. (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. 21 The Federation's application for the making of the interim Award and the new Award has been made in the course of an arbitration under Chapter 3 of the Act, to resolve an industrial dispute. The Commission has jurisdiction to entertain the application, subject to any restriction flowing from s 19 of the TAFE Act.

[24]

Section 19 of the TAFE Act 22 In New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 a Full Bench of the Commission had to consider the interaction between s 19 of the TAFE Act and the Act. The TAFE Act has since been amended, albeit s 19 of that Act remains relevantly unaltered. It provides: 19 Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the TAFE Commission Division of the Government Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the TAFE Commission Division of the Government Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. 23 Section 19 is concerned with 'the appointment or failure to appoint a person to a vacant position in' TAFE and 'any matter, question or dispute relating to such an appointment or failure'. 24 The proposed interim award sought, is concerned with teachers who commence permanent employment after Semester 2 2008 and their entitlement to reduced teaching time and payment of tuition and other fees, if undertaking particular studies. Plainly, these are matters within jurisdiction, being concerned with conditions of employment, but not with appointment or failure to appoint to a vacant position. The interim award seeks new conditions of employment, for permanent teachers, once appointed. Section 19 of the TAFE Act is not concerned with such matters. 25 The same conclusion must be reached in relation to the new Award, which also seeks to deal with various conditions of employment, of 'teachers permanently employed in a teaching position in TAFE' (cl 2). Given the provisions of clause 9, Initial Employment, of the current Award, initial employment at TAFE is for a minimum probationary period of one year. Permanent employment depends on certain confirmation, thereafter. The new Award seeks conditions of employment to apply to teachers, once they become permanent employees. 26 In those circumstances, it is clear that the Commission is not precluded from dealing with the claims which the Federation seeks to pursue in these proceedings, as a matter of jurisdiction, given the limitations imposed by s 19 of the TAFE Act. The Federation's claims are all concerned with conditions of employment of permanent TAFE teachers, after appointment.

[42]

6.2 Any teacher who does not satisfy the teacher training requirements as determined by the employer shall not progress more than one step along the common incremental salary scale above the salary step paid on initial appointment. 34 Given these provisions of the current Award, which each specify that teacher qualification and consequential salary progression is a matter for the Department, I am satisfied that there can be no question that the matter of qualifications required of teachers is already 'expressly contained' in the current Award. What the proposed new Award seeks to do is to regulate that matter, in a different way to how it is regulated by the current Award, namely to remove from the Department a discretion which it expressly has at present under the current Award, to determine what qualifications it requires the permanent teachers it employs at TAFE to hold, or to acquire. Instead, qualifications required of permanent teachers are to be specified by the new Award. 35 On Mr Bradley's affidavit evidence, the Federation's application was made, following a change in a long time custom or practice at TAFE, whereby the Department required permanent TAFE teachers who did not hold university level teacher training qualifications on appointment, to acquire them. Instead, the Department has determined that in future, it will only require permanent TAFE teachers to hold, or acquire a Certificate IV in Training and Assessment. 36 The Federation disagrees with that decision and other changes which the Department has made to pre-existing practices in relation to release time and other support provided to teachers while studying to upgrade their qualifications. The Federation takes the view that these changes directly contradict public policy efforts directed at increasing the skills and qualifications of the Australian workforce. The Federation believes that the Department's initiative will result in short term savings, at the cost of the quality of the vocational training which TAFE delivers, through the employment of more highly trained staff. This follows because in the past TAFE required its permanent teachers to undertake some 500 hours of training for a university degree, as opposed to 90 hours' training, which it now requires teachers to undertake, for a Certificate IV qualification. 37 In the Federation's view, these changes would also impact on TAFE teachers' career prospects and downgrade their pre-existing conditions. 38 While all of these concerns might be understandable, that does not alter the fact that the current Award expressly deals with the matter of qualifications of teachers, including appointment as a permanent TAFE teacher, in such a way that it is a matter for the Department to determine what qualifications it requires its permanent TAFE teachers to hold, or to acquire. That being so, it follows that clause 43 precludes the Federation from making a further claim, seeking an alteration to the current Award regulation of that matter, during the life of the current Award.

[67]

In approaching the construction of no extra claims provisions, or provisions such as those contained in the Heads of Agreement, a strict approach of their construction should be applied consistent with the necessity of maintaining the integrity of the wage fixation principles. Nevertheless, a strict construction (that is, one which would be alert to ensure inappropriately brought claims do not proceed) does not require the Commission to ignore the actual words used in the provision or to ignore a clear attempt by the parties to limit the terms of the commitment. 52 Equally, it seems to me, in determining what a no extra claims provision which award parties have agreed is directed to, the Commission must be alive to what the award in question, in reality, deals with, in order to ensure that careful drafting of new claims does not achieve a circumvention of what has, in truth, been agreed by the award parties, in a no extra claims provision. 53 In this case, again, while not expressed to be a variation to the current Award, properly understood, that is intended to be the effect of clause 7 of the new Award. The new Award envisages in clause 7 that in addition to the normal release time provided by the current Award for professional development, teachers undertaking 'higher education teaching qualification', will receive either 8 or 10 additional hours per week additional release from their normal loads, as specified in clause 16, thereby also reducing their annual hours, accordingly. This additional release has consequential impact on the provision made in clause 17 Duties Related to Teaching. The effect of the making of the award, is to remove the discretion given to Institute Directors in clause 16.3, as to other reductions in teaching loads. The effect of the making of the new Award, is to reduce the loads otherwise specified in clause 16. 54 Further, as was submitted for the Federation, the current Award already envisages that the Department gives teachers undertaking a 'higher education teaching qualification', additional release time by way of policy. This follows from clause 21.6.3, where it is specified that professional development allocation dealt with in clause 21, 'shall be in addition to other professional development time/activities already provided by the employer'. 55 The parties expressly recognised in the current Award, that the Department operated such practices and policies and in doing so, left the alteration of such matters in the Department's hands. It is just such an alteration of an existing policy, in relation to additional release time, which has resulted in this application. 56 The effect of clause 7 of the proposed award is also to remove the employer's discretion as to such matters, which the current Award envisages the Department is to have and to replace it with the express provisions made in the proposed award, as to that matter. 57 Again, it follows that the Federation is precluded from pursing this aspect of its claim, because this matter is 'already expressly contained in the award', in the various provisions I have referred to. The application seeks a variation to the arrangement made by the current Award, as to teaching and other loads, as well as release time, which clause 43 precludes it from pursuing, during the life of the Award.

[69]

What course should the proceedings now take? 61 Finally, it is necessary to deal with the Federation's suggestion that rather than dismissing the Federation's claims, or any part of them, the proper course is to stand that aspect of the proceedings over, until the expiry of the current Award in December. I do not accept that submission. While it was a course taken in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 it has not been accepted in other cases. As the Commission there explained, that was a peculiar situation, flowing from a decision in Amery v State of NSW [2001] NSWADT 37, where unlawful discrimination flowing from an award was found to have arisen. This is quite a different case. 62 In Re NSW Education Employees (Non-Continuing Contract Employment) Award (1998) 92 IR 239, a Full Bench of the Commission observed at pp 244 - 245: There is no doubt that the claims, if granted, would confer significant additional benefits on casual employees and significant additional obligations, both monetary and otherwise, on the respondents in relation to that class of employee. In an industrial relations context the purpose of a no extra claims clause in a consent award is that for the period of duration of the award there will be no extra claims in favour of either side unless by agreement. To limit the no extra claims provision to the type of matter already specified in the award would leave the way open for legalistic, unscrupulous claims in relation to additional matters to be put forward. We do not think that such an interpretation is justifiable in the circumstance of this case: rather, in our opinion, the no extra claims clause precludes the present claims which are aimed at substantially improving, at the expense of the employer, the employment conditions for casuals authorised by the current award. 63 This approach was followed by another Full Bench in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (at pp 370-1). A similar outcome was achieved in Re NSW Education Employees (Non-Continuing contract Employment) Award (1999) 92 IR 239. There is no basis upon which this approach could properly be departed from in these proceedings. The parties have made a no extra claims agreement. They must adhere to it. To permit the Federation to make these claims, during the life of the award, would be inconsistent with the purpose of the no extra claims provision, which the parties have agreed. 64 I have concluded, however, that the Federation is free to pursue one aspect of its claim, in both the awards it seeks. Whether it wishes to do so, given the other conclusions which I have reached, is a matter which it must have an opportunity to consider. Sensibly, it might also wish to take the opportunity to have some further discussions with the Department, in the circumstances. 65 In those circumstances and given the hearing currently programmed to commence on 17 June, I will list the matter for mention at 10am on Monday, 16 June 2008.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties

Cases Cited (5)