Application for Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022 [2022] NSWIRComm 1099

Industrial Relations Commission (NSW)|2022-10-12

s Cited: Nil Category: Principal judgment Parties: Secretary of the Department of Education (Applicant) Australian Education Union New South Wales Teachers Federation Branch (Respondent) Independent Education Union of Australia (NSW/ACT Branch) (Intervenor) Representation: Counsel: I Taylor SC with O Fagir (Applicant) S Crawshaw SC with P Boncardo (Respondent) A Howell (Intervenor) Solicitors: Crown Solicitor (Applicant) NEW Law (Respondent) File Number(s): 2021/00290044 and 2021/342993 Publication restriction: No

DECISION

On 12 October 2021 the Secretary of the Department of Education ("Secretary") notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). The notification stated that the parties, being the Secretary and the Australian Education Union New South Wales Teachers Federation Branch ("Federation"), had commenced negotiations for a new award to replace the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2020 ("2020 Award"), which was to reach its nominal expiry date on 31 December 2021. Through the notification, the Secretary sought to have the Commission assist the parties in those negotiations. The dispute was assigned matter number 2021/00290044 ("Dispute Proceedings").

Matters for determination

The Proposed Award in large part reproduces the terms of the 2020 Award. The Application contends: "4. …The effect of the application is to preserve all existing terms and conditions, other than as follows: a. The award would have a nominal term of three years from the date on which the award is made, consistent with s.16(2) of the Industrial Relations Act 1996 (NSW); b. Effective from the first full pay period following the date the award is made by the Commission or the date the parties agree on the terms of the award, the award would provide an increase in remuneration of 0.25% backdated to the first full pay period after 1 July 2022. The award would provide a further annual increase in remuneration of 3.0% for 2023 and 2024, comprising 2.53% increase in salaries and salary-related allowances and 0.5% increase to the superannuation guarantee contribution. …; c. Clause 7 Performance and Development Processes for Teachers would be varied to make clear that the Performance Development Framework 'jointly developed' by the parties to the current award may be varied by the Secretary following consultation. d. The Definition at clause 2.41, the text within clauses 3.6, 3.7, 3.8, 3.9, 3.14, 3.15, 3.16, 3.17, 6.4 and Clause 4.3 of Schedule 12 have been amended to reflect the annual performance and development plan required for progression in those clauses. e. The award would amend the text to adopt modern plain language while maintaining the intent and purpose of the clauses that have been modernised. …All proposed amendments have been agreed between the parties." (Tracked changes removed)
At the conclusion of the arbitration of the proceedings before the Full Bench, the following matters remained in contention and require determination: 1. whether the changes sought to be introduced ought to be the subject of a new award (the Secretary's position) or by way of variations to the 2020 Award (the Federation's position); 2. whether the nominal term of any new award ought to be three years expiring on 31 December 2024 (the Secretary's position) or two years expiring on 31 December 2023 (the Federation's position); 3. whether cl 7 of the 2020 Award - titled "Performance and Development Processes for Teachers" - ought to be retained, or amended; and 4. the terms of the "no extra claims" clause to be included in any new award.
It was common ground that the increases in salaries and salary-related allowances anticipated by the Proposed Award exceed those that the Commission could award without the Secretary's agreement, having regard to s 146C of the Act and cll 6 and 6A of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation"). There was no opposition to the Commission awarding those increases. That said, the quantum of the increases informed the position taken by the Federation and the Independent Education Union of Australia (NSW/ACT Branch) ("IEU"), the Intervenor in the proceedings, more broadly. We will return to the unions' positions in this regard.

Decision

We have decided to make a new award in the form of the Proposed Award with two exceptions. First, the award will have a two year nominal term expiring on 31 December 2023 (with consequential amendments to some of the provisions of the Proposed Award). Second, the no extra claims clause will be amended to substantively reflect the language of the counterpart provision in the Crown Employees (School Administrative and Support Staff) Award 2022. Our reasons follow.

Applicable legislation and principles

There was no controversy as to the principles that the Full Bench ought to apply in determining the Application. Consequently, we will not reiterate those principles or reproduce extracts from the authorities from which they are derived. We limit ourselves to drawing attention to the observations of the Full Bench in Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 at [17]-[32].
We also assume familiarity with the Act and Regulation. We will not reproduce the provisions to which we refer.
We are mindful of the Commission's jurisdiction under ss 10 and 17 of the Act, and the matters to which we must by s 146(2) have regard in exercising that jurisdiction (including the objects in s 3). We note the constraints imposed on our jurisdiction by s 146C of the Act and the Regulation.

New award or variation?

The Federation argues that the Commission ought not make a new award as sought in the Application, but rather should implement any changes to the current terms and conditions through variations to the 2020 Award pursuant to s 17 of the Act. The underlying premise of the Federation's position is that the making of a new award might, given the terms of cl 6(1)(d) of the Regulation, preclude it from continuing to advance claims on behalf of its members. In particular, the Federation's Submissions contended that it "will continue to press its claim for greater salary increases than those contained in the application".
To provide context in which those claims might be advanced, in its written submissions dated 14 September 2022 ("Federation's Submissions"), the Federation submitted that the Secretary's conduct had "detracted from the paid rates nature of the [2020] Award and encourage [sic] over award increases". This conduct included the proposal in the Application to confer a 0.25% increase from 1 July 2022 by way of administrative action, rather than by way of an increase to the rates in the 2020 Award, and in announcing through a media release issued on 11 August 2022 a proposal to create "higher paid roles for outstanding teachers". The Federation further submitted that "the Commission should act on the basis that that the constraints on increases in public sector salaries may very well be different in 2023 and/or 2024 and that the Government's position (or the Government) may change during that time".
The Federation contended that cl 6(1)(d) of the Regulation does not necessarily encompass variations to awards under s 17 of the Act. During the arbitration, Mr Crawshaw SC, who appeared for the Federation, traversed the language of the Act - and in particular s 146C - to attempt to draw a distinction between the making or varying of an award and the making of an order. He contended that a variation need not be made by an order. If a variation is made other than by way of an order, the variation "is neither the making of a new award or the making of an order for the purposes of" cl 6(1)(d). [1] Mr Crawshaw submitted that to the extent that it was satisfied that changes to the terms of the 2020 Award were warranted, the Full Bench should exercise its discretion to introduce those changes by way of a variation that "is not made by an order". [2]
Clause 6(1)(d) provides that "[a]wards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later time or allow extra claims to be made during the term of the award or order)". In reference to Mr Crawshaw's submissions, we observe that the provision does not refer to "new awards".
The term "award" is defined in the Dictionary of the Act as meaning "an award made, or taken to be made, by the Commission under this Act, and includes any order of the Commission under this Act that sets conditions of employment". As we apprehend the Federation's case, a variation is distinct from "an award made, or taken to be made" under the Act and need not be an "order…that sets conditions of employment". As a result, if the variation is made other than by way of order, it is not an "award" as defined. Consequently, cl 6(1)(d) would not be attracted.
There may be force to the Federation's submissions that an award may be varied other than by way of an order. In the same way that the Commission "makes" an award, it might "make" a variation. However, it is not necessary to form a concluded view on that contention for the purposes of these proceedings.
The Act draws a distinction between the making of an award and the variation of an award. However, the Federation's position requires this distinction to extend to exclude "variations" from being "awards". Such a construction is inconsistent with the Act and Regulation as a whole.
Clauses 6(1)(a), 6(1A), 6A(2) and 6A(5) of the Regulation set out the conditions on which public sector employees "may be awarded" increases in remuneration or other conditions of employment. If a hard line is to be drawn between awards and variations, as the Federation suggests, the increases available under the Regulation would only be available if an application were made for a new award under s 10 of the Act. That is inconsistent with the Federation calling for the Commission to make a variation in these proceedings.
The variation of an award is an exercise of the Commission's award-setting powers under Ch 2 Pt 1 of the Act. As Mr Taylor SC, who appeared for the Secretary, submitted at the arbitration, "[a] variation to an award is necessarily the Commission acting by way of an award". [3] In our view, cl 6(1)(d) would apply to any changes introduced as a result of these proceedings, whether by way of a new award or variations to the 2020 Award (as a result of an order or otherwise).
As the Federation's call for a variation (other than by way of order) is premised on its stated intention to continue to press its claims, we do not accept it. While cl 6(1)(d) stands on its own terms, we consider that it would be contrary to the Commission's functions to adopt an approach that might encourage further disputation. We are also mindful of the object set out in s 3(g) of the Act to "provide for the resolution of industrial disputes".
We have determined to resolve the Application by making an award pursuant to s 10 of the Act, as opposed to varying the 2020 Award under s 17. That said, we have considered the position of the Federation as set out above in determining the nominal term of the new award and the contents of the no extra claims provision.

Nominal term

The Proposed Award contains a three year term, commencing from 1 January 2022 and ending on 31 December 2024. In her written submissions dated 31 August 2022 ("Secretary's Submissions"), the Secretary submitted that such a term was appropriate "to provide certainty and stability for the Department and its employees", by resolving the matters in issue between them and allowing them to "concentrate on addressing the various other challenges confronting the education sector".
The Secretary further submitted that a shorter term would be of no utility. A term of one year would result in the parties almost immediately having to enter into negotiations for a new award to commence from 1 January 2023. A two year award ending 31 December 2023 would provide no certainty to teachers as to their increases from 1 January 2024, in circumstances where the current maximum is being proposed. In this regard, the Secretary cautioned against speculating as to what, if any, changes to the Regulation might be introduced over the term of the award. Rather, she submitted that the Commission "must set conditions of employment which will be just and reasonable at the time when the award commences to operate and which will, barring unforeseeable happenings or circumstances, continue to be just and reasonable during the term of the award", citing Application for Crown Employees (Public Sector - Salaries 2020) Award and Other Matters (No 2) (2020) 301 IR 321; [2020] NSWIRComm 1066 at [89].
The Federation drew our attention to the Economic Outlook in the August 2022 Reserve Bank Statement on Monetary Policy. That Statement included the following: "Inflation is now the highest it has been since the early 1990s and is forecast to increase further in the second half of this year. … Inflation is high and is expected to increase further in the second half of the year. The forecast for headline inflation has been revised up substantially compared with a few months ago, reflecting broad-based pricing pressures that are not expected to ease until early next year, as well as expectations of large increases in retail electricity and gas prices over the coming year. Headline inflation is expected to peak around 7¾ per cent in year-ended terms towards the end of 2022, before declining back to the top of the inflation target range by the end of 2024… The near-term outlook for underlying inflation has also been revised higher, with an expected peak at around 6 per cent in late 2022. …Underlying inflation is expected to ease from early 2023 and to be back to the top of the inflation target range by the end of 2024. This moderation is expected to occur more slowly than previously assumed as higher energy costs partly offset declines in other input costs arising from the easing in supply chain pressures."
In numerical terms, the Statement of Monetary Policy provided the following forecasts: Year-ended Dec 22 Jun 23 Dec 23 Jun 24 Dec 24 CPI inflation % 7.75 6.25 4.25 3.5 3 Trimmed mean inflation % 6 5 3.75 3.25 3

In the Federation's Submissions, it contended that while it did not oppose the salary increases from 1 July 2022 and 1 January 2023 "it would be premature for the Commission to decide any salary increases that would apply from 1 January 2024". The Federation submitted: "7. It is clear that the Commission's wage fixing principles permit the granting of increases so as to maintain the real value of salaries, as best as possible within the strictures otherwise imposed by the Regulation. 8. Filed with this submission is the Economic Outlook in the August 2022 Reserve Bank Statement on Monetary Policy which shows that the forecast percentage increases in CPI for the two years from 1 January 2022, whether headline or underlying, will be significantly more than the percentage increases in salaries sought in the application. 9. In these circumstances, a special case is justified for much greater increases in salaries than those contained in the application based only on forecast CPI increases. 10. However, the respondent recognises that without the agreement of the applicant, which has not been forthcoming, the Regulation does not permit greater increases in salaries than those contained in the application…"
The IEU supported the Federation in opposing a three year award. In its written submissions, the IEU contended: "2. Whilst any increase is of course welcome, the position of the IEU is that the wage increases in the proposed new award sought by the Secretary are entirely unsatisfactory and would not provide fair or reasonable salaries for any public servant, and certainly not for those in the NSW Teaching Service or those it represents in the independent education sector. The IEU's position is that there should be at least a 10-15% increase in salaries for teachers over two years. Anything less is unsatisfactory having regard to the current rates of inflation, and the need to ensure that teachers [sic] salaries do not suffer a cut in real earnings. Anything less is also likely to do nothing to ameliorate the undeniable teacher shortage in this State, but rather would likely operate to exacerbate teacher shortages as teacher pay continues to fall relative to other professions. … 9. On the evidence, the effect of the Secretary's application would be: a. To lock in very significant reductions in the real value of wages for teachers directly bound by the Current Award in 2022-2023 (the December 2022 year on year forecast headline CPI figure being forecast at 7¾%, noting wage movements in the Current Award generally operate from 1 January, and so the December year on year inflation figures are the most useful for this purpose); and b. To lock in very significant reductions in the real value of wages for teachers directly bound by the Current Award in 2023-2024 (the December 2023 year on year forecast headline CPI figure being 4¼%). … 15. The Commission has held in a previous public sector award matter that 'employees…are entitled to maintain the real value of their earnings' and an outcome in award proceedings that would see a decrease in the real earnings of employees would not be fair nor reasonable. No different conclusion is, nor respectfully could be, reached in these proceedings. 16. The IEU submits that in circumstances where the Regulation effectively constrains the Commission's capacity to set fair and reasonable conditions of employment, the result of which is to constrain wage movements to below even that which would maintain the real value of wages, potentially for not only those bound by the Award but also a large portion of the teaching sector more broadly, it would not be fair nor reasonable, nor in the public interest to extend the nominal term of the Award so far into the future." (Footnotes omitted)
In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Department of Education; Application for Crown Employees (School Administrative and Support Staff) Award 2022 [2022] NSWIRComm 1075 ("SASS Award Case") the Full Bench determined to make an award with a one year term, as opposed to the two year term sought by the Secretary. In comments which are apposite to the present case, the Full Bench observed: "40. As was the case in respect of the Public Sector Salaries Case, the Regulation has had a significant bearing on our decision to limit the term of the New Award to one year. Clauses 6A(3) and 6A(5) of the Regulation allow for the possibility of additional increases in the financial year 2023-2024. While cl 6A(5) is subject to agreement, we consider that there may be scope for the Commission to intervene to resolve any dispute as to whether an additional increase under cl 6A(3) ought to be awarded to employees. … 41. On the terms of the award, particularly in light of the no extra claims clause agreed to by the parties, we are concerned that [the] PSA and its members might be disentitled to, or be perceived to be disentitled to, pursue any additional increases under cl 6A(3) during the term of a two year award. … 42. In addition to this, we also consider the exceptional circumstance of the current and projected inflationary pressures to be relevant and in favour the making of a one year award."
In light of the position taken by the Secretary in respect of the no extra claims clause referred to at [39] below, the concerns expressed in the SASS Award Case arising from cl 6A(3) of the Regulation are alleviated to a degree, but are not wholly resolved. Overall, we have not been persuaded that we should apply different reasoning to the present case as that adopted in the SASS Award Case.
We have determined that the new award should have a nominal term of two years, commencing on 1 January 2022 and expiring on 31 December 2023.

No extra claims clause

The Proposed Award contains a clause titled "No Further Claims" in these terms: "Except as provided by the Industrial Relations Act 1996, prior to 31 December 2024, there will be no further claims by the parties to this Award for changes to salaries, rates of pay, allowances, or conditions of employment in relation to matters expressly contained in this award."
The date of 31 December 2024 obviously reflects the three year term sought by the Secretary. Other than for that date, and the use of "will" in place of "shall", the language of the clause is the same as that appearing in the 2020 Award.
In support for maintaining that language, the Secretary relied on Application for Crown Employees (Public Sector - Salaries 2022) Award [2022] NSWIRComm 1057 in which the Full Bench observed: "51. However, each of the 2021 Awards contains a no extra claims provision in the terms sought by the Applicants. Those awards are presumed to set fair and reasonable terms of employment. We are not satisfied that that presumption has been rebutted."
The Federation's position was that if the Commission made a variation as opposed to a new award, there was no need for a no extra claims clause.
During the course of the arbitration, the Full Bench drew the parties' attention to the Crown Employees (School Administrative and Support Staff) Award 2022 ("SASS Award"), which was made as a consequence of the SASS Award Case. The SASS Award contains the following provision: 23. No Extra Claims 23.1 Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, there are to be no further claims/demands or proceedings instituted before the NSW Industrial Relations Commission for extra or reduced wages, rates of pay, allowances or conditions of employment with respect to the Employees covered by the Award that take effect prior to 14 July 2023 by a party to this Award.
There was some discussion between the Full Bench and the parties as to whether the terms of this provision was to be preferred over that in the Proposed Award. In particular, it might alleviate concerns as to whether the clause would preclude claims being made for further increases pursuant to cl 6A(3) of the Regulation. Further, contrary to the language of the no extra claims clause in the Proposed Award, it would not preclude the making of claims prior to the nominal expiry date of the award, even if any changes sought could not take effect until after that date.
The parties were provided with an opportunity to consider their position following the arbitration and to provide submissions on this question.
In submissions received from the Secretary on 25 October 2022, the Secretary maintained her primary position that the 2020 Award was presumed to set fair and reasonable conditions of employment and that in the absence of the Federation having rebutted that presumption, there was no reason why the Commission ought not adopt the term contained in the Proposed Award. However, she went on to submit: "7. Clause 23 of the SASS Award has the virtue of making clear that the clause does not prevent a party from taking any step which might be permitted or contemplated by the Act or the Regulation, including for example by making an approach directly to the Department seeking a further wage increase of 0.5% as contemplated by 6A(3) of the Regulation. 8. While the Applicant is content with the current no extra claims provision, she does not object to the adoption instead of a no extra claims clause in the form of clause 23 of the SASS Award."
In submissions received from the Federation on 27 October 2022, the Federation reiterated its position that if the changes to be introduced as a consequence of the Application were done by way of variation as opposed to an award or order, cl 6(1)(d) of the Regulation has no application. If the 2020 Award were varied, there was no need for a no extra claims clause. Indeed, a variation to extend the date contained in the no extra claims clause would impose greater restraints than those contained in the Regulation.
In the event that the Commission determined to make a new award, the Federation submitted: "7. However, the position is more complex if the salary increases are given effect to by an award. If a new award is made, an extension to the no extra claims clause would only impose greater constraints than those contained in the Regulation to the extent that it imposed constraints additional to those in subclause 6(1)(d) which does not 'allow any extra claims being made during the term of the award'. 8. While it may be accepted that subclause 6(1)(d) prevents any extra claims being granted that would apply during the term of the award, it is submitted that the preferable construction of subclause 6(1)(d) is that it does not prevent a hearing during the term of an award of an application for a new claim that will apply after the term of the award has expired. 9. If it were otherwise, an arbitrated decision by the Commission in relation to a new claim would necessarily always be made well after the expiry of the term of the previous award and always require an application for a retrospective operative date if the decision was to apply from the end of the term of the previous award. However, subclause 6(2) of the Regulation only permits retrospective operation in 'exceptional circumstances'. 10. Given this context, it would be absurd and/or contrary to the purpose of the Regulation to construe subclause 6(1)(d) as preventing, during the term of an award, the hearing of an application for a new claim that will apply after the term of the award has expired. 11. Indeed, if a more restrictive construction of subclause 6(1)(d) is correct, it supports an argument that the term of any award in the circumstances of this case should be no longer than 30 June 2023 in order that a new claim may be made after that time for the increased salaries available under clause 6A of the Regulation from that date. 12. On the other hand, if subclause 6(1)(d) allows the hearing of such a new claim during the term of any award, the extension of the no extra claims clause in the Current Award would impose a greater constraint than subclause 6(1)(d). This is because the wording of the no extra claims clause in the Current Award has the effect of preventing the hearing of an application for a new claim that will apply after the term of the award has expired. 13. That consequence would be avoided by the making of a no extra claims clause that is worded in the same way as that applicable to nurses, public servants, and the Crown Employees (School Administrative and Support Staff) Award 2022."
We are conscious that the 2020 Award is presumed to set fair and reasonable conditions, which would extend to the no extra claims clause. We acknowledge that the suggestion that the new award include a provision reflecting the no extra claims clause in the SASS Award emanated from the Full Bench, not from the Federation's submissions or evidence. However, in the circumstances of this case and noting the position of the Secretary, we have determined to adopt the language of the no extra claims clause in the SASS Award.

Clause 7 - Performance and Development Processes for Teachers

Clause 7 of the 2020 Award is in these terms: 7. Performance and Development Processes for Teachers 7.1 The Performance and Development Framework for Principals, Executives and Teachers, jointly developed by the parties, applies to employees covered by this award.
The Secretary led a considerable amount of evidence regarding the "Performance and Development Framework for Principals, Executives and Teachers" ("PD Framework"). It relied on statements by Yvette Cachia, the Chief People Officer and Deputy Secretary of the Department of Education, and Deborah Summerhayes, who is employed in the Department as an Executive Director, School Performance - Metropolitan South and West. Their evidence was not controverted by the Federation, and it is consequently convenient to rely on the following summary of that evidence contained in the Secretary's Submissions: "25. …The P&D framework negotiated in 2015 however is inadequate, for reasons explained in detail in the evidence of Ms Cachia and Ms Summerhayes. They include that: (a) the framework insufficiently emphasises development as opposed to adequate performance; (b) the existing framework effectively requires a consensus between teacher and supervisor. For example, the teacher must agree to the person observing their teaching (as opposed to the observation being conducted by the principal/supervisor or a person nominated by the principal/supervisor) and the teacher must also agree to the goals, observations, feedback and the written annual assessment of their performance; (c) the framework does not require specific, measurable, achievable, relevant and time based (or 'SMART') goals aligned to the Australian Professional Standards for Teachers. There is no necessary connection between the teacher's annual goals and the criteria for teaching at a 'Proficient' level within the meaning of the Standards, and annual performance and development goals are not necessarily based on the Standards or even on role descriptions; (d) principals and supervisors are not permitted to consider colleague, student, parent or community feedback in assessing teachers' achievement of annual goals; (e) there is no explicit requirement that observations of practice are followed by written feedback, and supervisors have only one opportunity each year to provide formal feedback; (f) the combination of these factors creates a difficulty for principals who are required by the Teacher Accreditation Act 2004 (NSW) to certify that the teacher is in fact performing at a 'Proficient' level within the meaning of the Standards; (g) the lack of documented feedback on performance can compromise the ability of principals to commence formal performance improvement programs (and their ability to defend performance management processes in unfair dismissal proceedings); (h) overall the current framework is ineffective in identifying improvements required of teaching staff, and does not provide a means of early detection of departure from good teaching practice or sufficient guidance to teachers on how to redirect their work and efforts to achieve better student outcomes; and (i) the framework is not differentiated for different roles in a school (teacher as opposed to principal, for example). 26. That the current P&D Framework needs to be varied is the view of the NSW Auditor-General and the Productivity Commission, both of which have conducted research and issued reports which recommend revision to the current framework. … 27. The Department has from late 2019 onward attempted to revise and improve the P&D framework by agreement. To that end it has engaged, unsuccessfully, with the Federation. The evidence indicates that the Federation's attitude to those approaches has been that: (a) clause 7 requires that the Federation consent to any changes to the P&D framework; (b) the Federation does not agree to any proposed change to the framework; (c) the Federation has not proposed any changes of its own or suggested any meaningful way forward; and (d) the Federation has been particularly resistant to the proposals recommended by the NSW Auditor-General and the Productivity Commission that at least one or two classroom observations be conducted by supervisors as opposed to persons nominated (or at least accepted) by the relevant teacher. 28. The Federation has, from 12 March 2021 to date, declined to engage with the Department at all on the issue." (Footnotes omitted)
The Secretary submitted that the Department of Education ought to have the capacity to develop and implement a performance and development framework which is fit for purpose, and vary that framework from time to time as appropriate. This would include making changes to implement the recommendations of the Auditor-General and the Productivity Commission.
There was a significant change in the Secretary's position during the course of the arbitration. Her position at the start was that cl 7 should simply be deleted, with consequential changes being made to the terms currently in the 2020 Award. At the conclusion of proceedings, the Secretary's preferred position was that cl 7 be amended so as to allow the Secretary to vary or replace the PD Framework, "following consultation with the parties".
The Secretary was granted leave to file and serve, subsequent to the arbitration, a further amended application. (The Application is the result of that order.) Directions were made to permit the parties to make further submissions on the Secretary's revised position.
Through the Application, the Secretary seeks to have cl 7 amended to read: "The Secretary can vary the Performance and Development Framework that was jointly developed by the parties and/or replace it with one or more new performance and development framework policies, following consultation with the parties."
The Application proposed various consequential amendments to the Proposed Award, including to the definition of "performance and development process" in cl 2.41.
In submissions filed on 21 October 2022, the Federation stated that it did not oppose the consequential amendments, but contended that there were "fundamental problems" with the wording of cl 7. It raised concerns as to the lack of a definition of "performance and development framework" and "new performance and development framework policies", arising from the view that they "are much broader" than the definition of "performance and development process" in cl 2.41, and would "embrace any significant decisions or power to make significant decisions that affect performance and development of public school teachers in NSW".
The Federation also raised concerns that the reference to "that was jointly developed by the parties" would be a source of confusion "because the performance and development framework, once varied or replaced following consultation between the parties, will no longer be jointly developed by the parties to the award".
The Federation further contended that the proposed cl 7 was contrary to the Teacher Accreditation Act 2004. It submitted that "the unarticulated premise of the proposed Clause 7 is that it is the Secretary who is responsible for the standards and professional development which underpin the 'performance and development framework' and 'new performance and development framework policies' applying to public school teachers in NSW", whereas under s 19 of the Teacher Accreditation Act it is the Minister and not the Secretary who is responsible for approving professional teaching standards.
The Federation submitted that the Commission ought to reject the proposed cl 7, but rather accept the original position of the Secretary and delete cl 7. In the alternative, it submitted that cl 7 be varied to read as follows: "Variation and/or replacement of the existing performance and development process may occur following consultation between the parties."
The Secretary filed submissions in reply to those of the Federation on 26 October 2022. We will not attempt to summarise those submissions. For the reasons which follow, we accept them.
The position taken by the Federation regarding cl 7 must be viewed in the context that it did not engage with the merits of the Secretary's position. It did not challenge the Secretary's evidence as to the need for changes to be made to the PD Framework, nor did it seek to controvert the evidence that it had steadfastly resisted any changes being made to the PD Framework. The Secretary submitted: "16. …[T]he Secretary respectfully submits that the Commission should approach the question on the following basis: (a) the current performance and development framework is unsatisfactory, and reform is necessary; (b) the Federation has vehemently opposed any changes to the framework, relying on the existing clause 7 which it claims gives it a veto right over change; (c) that Federation's opposition is likely to continue and if anything increase given its increasingly combative stance toward the Department; (d) unless the award is pellucid in providing that the framework may be varied or replaced by the Secretary following consultation, the Federation is likely to continue to resist change on the basis that the award does not permit the Secretary to unilaterally amend the framework."
These submissions are borne out by the Secretary's uncontested evidence.
We do not accept the issues raised by the Federation as to the drafting of the Secretary's proposed cl 7. At no stage during the proceedings did the Federation suggest that there was any uncertainty or confusion as to the meaning of the "Performance and Development Framework for Principals, Executives and Teachers" as referred to in cl 7.1 of the 2020 Award. It is clearly a reference to the document by that name that was promulgated in March 2015 referred to at pars 59 and 60 of Ms Cachia's statement and which appears at Tab 8 of Exhibit YC-1 to that statement.
In context, there can also be no confusion as to the meaning of "new performance and development framework policies". As the Secretary contended, they would be policies that set out a performance and development process.
The intention of the clause is clear. Subject to undertaking consultation, the Secretary seeks to be able to introduce such performance and development processes as may be required from time to time. She does not wish to remain bound to the PD Framework in its current form or to maintain a situation where the agreement of the Federation is required before introducing any changes. In circumstances where there is no challenge to the proposition that the PD Framework is in need of reform, but the Federation steadfastly refuses to engage meaningfully in consultation aimed at introducing the necessary changes, the Secretary's position is both understandable and legitimate.
For these reasons, we are not attracted to the terms of the clause proposed by the Federation. As the Secretary submitted, the Federation's proposed clause is ambiguous and fails to address expressly the question as to whether the Secretary is entitled to vary the PD Framework without the Federation's agreement.
As to the Federation's submissions regarding the Teacher Accreditation Act, we agree with the Secretary's submission that the "performance and development process is one that focuses on how teachers are meeting the Standards, not on setting the Standards themselves".
For all of these reasons, we are persuaded that it would be fair and reasonable that the new award contain a clause in the terms of cl 7 of the Proposed Award.

Determination

Pursuant to s 10 of the Industrial Relations Act 1996, the Commission makes an award to be known as the "Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022" in the form of the Proposed Award, subject to the following: 1. the award will have a nominal term of two years, commencing on 1 January 2022 and expiring on 31 December 2023; 2. as a consequence: 1. clauses 3.1.3, 3.2.3, 3.3.3 and 3.4.3 of the Proposed Award are to be deleted; 2. the reference in cl 38.3 to "31 December 2024" is to be amended to "31 December 2023", and the clause is to be re-numbered 38.2; 3. in the headings for each of Schedules 1A, 1B, 1C, 2B and 3 the references to "2024" are to be replaced with "2023"; 4. in the heading to Schedule 2A the reference to "2020-2022" is to be replaced with "2022-2023"; and 5. the columns in the tables in Schedules 1A, 1B, 1C, 2A, 2B, 3, 4, 5, 6, 7, 8 and 12 that reflect rates payable on or after 1 January 2024 are to be deleted; 1. clause 32 is to be amended to read: Other than as provided for in the Industrial Relations Act 1996 and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014, there are to be no further claims/demands or proceedings instituted by a party to this Award before the NSW Industrial Relations Commission for extra or reduced wages, rates of pay, allowances or conditions of employment with respect to the Employees covered by the Award that take effect prior to 1 January 2024. 1. consequential amendments are to be made to the table in cl 1.
Pursuant to s 17 of the Industrial Relations Act 1996, the Commission rescinds the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2020.
Matter number 2021/00290044 is dismissed.
The Secretary is directed to file and serve draft Short Minutes of Order to reflect our determination by 4.00pm on 18 November 2022.

Endnotes

Tcpt at p 37(10-11)
ibid. at p 38(1)
ibid. at p 42(43-44)

Amendments 14 November 2022 - Minor amendment made to the cover sheet. 14 November 2022 - Correction made in Paragraph [14] from the Secretary to the Federation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2022

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Legislation Cited (2)

Cases Cited (5)