Australasian Memory Pty Ltd v Brien

APPLICANTS: Mr P Menzies of Queens Counsel for the New South Wales Department of Education and Training, and the New South Wales Technical and Further Education Commission

SOLICITOR Mr I V Knight Crown Solicitors Office

LEGAL REPRESENTATIVES: Mr S Crawshaw of Senior Counsel with Ms P Lowson of Counsel for the New South Wales Teachers' Federation

JUDGMENT:

• 26 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice President GLYNN J HARRISON DP BISHOP C

CROWN EMPLOYEES' (TEACHERS IN SCHOOLS AND TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD Application by Director General, Department of Education and Training, New South Wales Technical and Further Education Commission and the New South Wales Teachers Federation for a new award

DEPARTMENT OF EDUCATION AND TRAINING- TEACHERS, PROFESSIONAL OFFICERS, SENIOR PROFESSIONAL OFFICERS AND RELATED EMPLOYEES SALARIES AND CONDITIONS AWARD Application by TAFE NSW and the Department of Education and Training for a new award

CROWN EMPLOYEES (TEACHERS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD Application by New South Wales Teachers Federation for variation re structural efficiency changes

NEW SOUTH WALES TAFE COMMISSION TEACHERS AND OTHER EDUCATIONAL STAFF - SALARIES AND CONDITIONS AWARD 1996 Application by New South Wales Teachers Federation for variation re structural efficiency changes

NOTIFICATION UNDER SECTION 130 BY THE NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING OF A DISPUTE WITH THE NEW SOUTH WALES TEACHERS FEDERATION RE CALL FOR 24 HOUR STRIKE ON 18 NOVEMBER 1999

CROWN EMPLOYEES (TEACHERS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD Notice of Award Review pursuant to section 19 of the Industrial Relations Act 1996

NEW SOUTH WALES TAFE COMMISSION (TEACHERS AND OTHER EDUCATIONAL STAFF) SALARIES AND CONDITIONS AWARD 1996 Application by the New South Wales Teachers Federation for variation re part time work

DECISION OF THE COMMISSION 1 Proceedings in these matters on 16 November 2000 brought to conclusion a long and sometimes bitter dispute between the New South Wales Department of Education and Training ("the Department") and the New South Wales Teachers' Federation ("the Federation"). Matter No 5471 of 2000 is a joint application by the Department and the Federation for the making of a new award by consent pursuant to ss10 and 11 of the Industrial Relations Act 1996 ("the Act"). 2 Mr P Menzies, of Queens counsel, appeared for the Department. Mr S Crawshaw, of senior counsel, appeared with Ms P Lowson of counsel for the Federation. 3 On 16 November 2000 the Full Bench made an extempore decision in the following terms: "We have determined in this matter that we will make the award as contained in Schedule A of the application before us as amended by exhibit 1 in the proceedings, subject to the provision of a suitably adjusted clause with respect to clause 23.3.8 of the award, and noting the observations made by Mr Menzies with respect to clauses 3.2 and 3.3 of the award.

That award shall operate on and from 1 January 2001 and shall remain in force until 31 December 2003.

We shall provide our reasons for decision in due course, which reasons shall incorporate our consideration of the application of s 23 of the Act. " 4 We now provide our reasons for the decision are now published. 5 The award presented to the Commission for approval by consent of the parties is entitled Crown Employees, Teachers in Schools and TAFE, and Related Employees Salaries and Conditions Award. It is the culmination of lengthy and detailed negotiations between the parties. The terms of the proposed award were described by Ms Lowson, who submitted that the proposed award filed by consent of the parties followed some six months of negotiation, involving the parties' representatives attending meetings on a frequent basis with a view to reaching a consensus position for the making of a new award to prescribe the terms and conditions of employment of teachers and related employees. 6 The Federation was granted leave to amend the application to give affect to an agreement between the parties to insert a new sub clause, 8.4, in clause 5, 'Salary Progression and Maintenance'. In accordance with our decision of 16 November, the parties filed an amended clause 23.3.8. We grant leave to amend the application in terms of the document filed by the Federation dealing with that matter on 28 November 2000. We shall refer in this decision to the award proposed by the application, as amended, as "the award". 7 The application sets out grounds in reasons advanced by the parties in Schedule B thereto in the following terms: SCHEDULE B Grounds and Reasons

All elements of the provision of public education and training (except for universities) in New South Wales are now incorporated within the single public utility of the Department of Eduction and Training.

The parties are seeking that the Commission make a new consolidated award as set out in Schedule A to cover government school and TAFE teachers and related employees.

The proposed award, the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award: (a) provides benefits for the entire workforce of 91,625 teachers (estimate includes part time casual TAFE teachers and casual school teachers).

(b) will produce significant improvement in the remuneration for non-permanent employment by the introduction of the temporary school teacher classification.

The parties' application for a new Consent Award reflects the agreement between the New South Wales Government and the New South Wales Teachers Federation of 25 May 2000 in relation to salaries and conditions of school and TAFE teachers.

The proposed award is in the public interest and is consistent with the objects and provisions of the Industrial Relations Act 1996

The proposed award is consistent with the State Wages Fixing principles.

Such other grounds as the Commission sees as proper. 8 Ms Lowson submitted that the award sought will replace the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award (1996) 295 NSWIG 1424 and the New South Wales TAFE Commission and Other Education Staff - Salaries and Conditions Award 1996 (1999) 317 NSWIG 257 (which was an award arising from a review conducted pursuant to s19 of the Act). The award also replaces the Crown Employees (Teachers Locality Allowances &c) Award (1983) 231 NSWIG 1651. We note that the Crown Employees (Teachers Locality Allowances &c.) Award ceased to apply to school teachers in 1993. 9 Ms Lowson submitted that the award sought is to commence on 1 January 2001 and to continue for three years (the maximum duration permissible pursuant to s16(2) of the Act) ending on 31 December 2003. 10 Ms Lowson noted that the structure of the award is in three parts: · A general section, found in clauses 3 to 17 and schedules 1 to 3 of the award, which applies to employees generally; · a school section which deals with primary and secondary school matters found in clauses 18 to 37 and schedules 4 to 10 of the award; and · the TAFE section found in clauses 38 to 56 and schedules 11 to 16 of the award. 11 Ms Lowson noted that there is a definition section in the form of a dictionary at pages 4 to 9 of the award. The dictionary is divided into three sections consistent with the structure of the award. 12 Ms Lowson then drew attention to what she described as the important matters contained in the application. 13 Ms Lowson noted that the award contains a dispute resolution procedure at clause 12. She also noted that clause 14 of the award contained the model anti-discrimination clause as required by the State Wage Case 1999 (1999) 88 IR 363 at 398. 14 Ms Lowson tendered a folder of documentation in support of the application (exhibit 2). We note that the first document in exhibit 2 is a letter of understanding between the parties dealing with award related matters from the Deputy Director of General Group Services to Mr Hennessy, General Secretary of the Federation. The correspondence sets out undertakings and commitments by the Department, including its undertaking to combine casual school teacher and temporary school teacher service for determination of salary on appointment to a permanent school teacher position. 15 It was also submitted that the award provided a common incremental scale for classroom teachers in TAFE and schools which appropriately recognised qualifications and experience in a similar manner to the previous awards. 16 Ms Lowson submitted that the award sought combines the 13 step common incremental scale previously existing in the School Teachers' Award and the four step incremental scale previously applicable pursuant to the TAFE award. These scales are combined with incremental steps across the three year period of the proposed award to arrive at one common incremental scale with a common end point by January 2003. One off allowances apply from 1 July 2003, (which are detailed in the salaries schedule to the award) in order to arrive at a common incremental salary scale as at 1 January 2004 with a top rate of $58,992 per annum. 17 Ms Lowson put that TAFE part time casual teacher rates are linked to the top of the TAFE common incremental scale until 1 January 2003. Part time casual teachers in TAFE will not shift from the $1.50 allowance during 2003, but they will shift from 1 January 2004 when there is an adjustment across the top of the scale. 18 Further, in dealing with the salaries aspect of the award, Ms Lowson noted that the award provides a salary increase of: · 3 percent on and from 1 July 2001; · 4 percent on and from 1 July 2002; and · 5 percent on and from 1 January 2003. 19 Ms Lowson put that the proposed rates of pay in the award incorporate a 4 percent increase determined by the Director General and Managing Director of Education to apply from 3 April 2000. It was submitted that an equivalent payment was made to those casual school teachers who would have been temporary school teachers had such a classification existed at the time; and that an equivalent payment was also made to part time casual TAFE employees who were programmed for 12 hours a week or more prior to 1 July 1999. 20 Ms Lowson submitted that the total quantum of salary increase overall is 16.98 percent. 21 She then went on to deal with those matters of award variation dealing with conditions and terms of employment:

(i) Clause 6 of the general section of the award is a new provision titled "Teacher quality". This clause provides a procedure for appraisal of teacher performance and parties have agreed upon an appropriate teacher assessment and review schedule.

(ii) Clause 9 of the general section is titled "Teaching in more than one location". This, it was submitted, is a new provision which allows the programming of teachers so that TAFE teachers may be programmed to teach in schools and school teachers may be programmed to teach in TAFE. Clause 9 provides for appropriate consultation and notice to teachers affected and for provision to take into account any specific needs of the particular teacher. This clause also provides that current travel compensation, including excess time and time provisions, will apply to teachers who are programmed to teach in other locations pursuant to this clause.

(iii) Clause 13 of the general section provides that, except as allowed by the Act, there shall be no industrial action and no further salaries and conditions claims by the parties prior to 31 December 2003 in relation to matters expressly contained in this award. Ms Lowson emphasised that the operation of clause 13, No extra claims, did not prohibit or interfere with the application of clause 16, Leave reserved, which allows the Federation to apply not before July 2003 to the Industrial Relations Commission for an award variation to vary the conditions of part time casual TAFE teachers in respect to the conditions of full time teachers. Clause 16 notes that, "the parties agree that no financial consequence of any decision in relation to the application shall take effect before January 2004". It is also noted that clause 15 of the award contains a leave reserved provision. It was also submitted that the Commission could make a leave reserved provision in an award, notwithstanding the provisions of s17(3) of the Act. It was submitted that the leave reserved clause represented the agreement of the parties to re-open the award (after a specified date) during the nominal term of the award. This agreement was consistent with and could be given affect to under s17(3)(d) or alternatively s17(3)(a) of the Act.

(iv) Clause 15, titled Goods and Services Tax ("GST"), provides that the parties shall monitor the overall impact of the GST and in the event that the Commission makes a State decision (as defined by s 49 of the Act) which has regard to the impact on wages of the GST, the right is reserved to the Federation to make application to the Commission in relation to that decision.

We note that so far as clause 15 is concerned, in the event that a state decision is made as defined by s 49 of the Act, the rights of industrial parties at large are prescribed by the Act in terms not dissimilar to those found in clause 15 of the application now before us.

(v) In dealing with the schedules to the proposed award Ms Lowson noted that the allowances applicable to school teachers and TAFE teachers had been combined to a common schedule consistent with the philosophy and structure of the application now before us which combines TAFE and school teachers within the single industrial instrument and overlapping organisational and operational scheme.

(vi) The schools section which commences at clause 18, 'Assessment and Reporting and Quality Educational Outcomes'. Ms Lowson again referred to document 1 of exhibit 2, the exchange of correspondence between the parties, noting that the Department advised there that it will seek to amend the relevant Regulations to include the numeracy programme and the schools assessment test so that these provisions are linked to the changes in the education policy. Clause 18 further deals with annual school reports and associated schools self evaluation and improvement programmes, the detail of which is further documented in tab 4 of exhibit 2. Included in tab 4 of exhibit 2 is a memo to school principals dated 18 August 2000.

(vii) Clause 19 is a new clause which provides for procedures for managing teachers who are experiencing difficulties with their teaching performance. The detailed procedures and method are found at tab 9 of exhibit 2. Ms Lowson submitted that the parties have also agreed to provisional arrangements that have been put in place for teachers that are under review.

(viii) Clause 20 of the award is a further new provision dealing with teaching hours for years 11 and 12 in schools. This provision states that the purpose of the clause is to increase the delivery of vocational education and training in schools and to enhance the curriculum opportunities available for post compulsory secondary students arising from the new Higher School Certificate. These provisions require school principals to provide a minimum of eight, 40 minute periods per day as core hours which they may schedule from 7.30 am to 5.30 pm, Monday to Friday, in order to maximise the extent to which the curriculum preferences of Year 11 and 12 students can be satisfied to meet the purposes expressed. Ms Lowson noted that the parties agreed that the core time frame would generally be 9.00 am to 3.30 pm; and noted that reference to a year was to a school year, emphasising that it is not intended to refer to school vacation periods.

These provisions may generally be regarded as facilitative and enabling provisions inserted in the interests of school flexibility to meet the needs of Year 11 and 12 students. The clause provides safeguards that the overall hours of the school teacher shall not exceed the school teacher timetable, teachers shall not unreasonably refuse to teach classes at those hours, and the arrangement of school teacher's hours necessary to meet a 7.30 am start or 5.30 pm finish shall be by consultation. Wherever possible, time off should be at the beginning or end of the four hours of the school day and a school teacher shall not be required to be timetabled both before and after core hours on any given day. (ix) Ms Lowson noted that the award abolishes the former 100 day casual and non-100 day casual classifications and replaces them with the classification of temporary school teacher and casual school teacher. She submitted that the temporary school teacher classification 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. She put that this clause introduces a type of appointment which has hitherto existed for casuals whereby a casual may be in fact appointed to a school part time or full time for a year or some period up to a year. Instead, she put, there is now a category of temporary school teacher and to be a temporary school teacher, the teacher will have to be engaged in one or other of these types of employment, i.e. full time for four weeks or more or for two terms or more for one to four days, effectively part time.

Ms Lowson noted that the award provides that temporary school teachers will be entitled to pro rata salary and conditions of permanent teachers, other than the provisions of clause 10 which deal with development salary scheme and clause 7, salary packaging. She further submitted that the commitment from the Department is that when a school teacher has occupied a single, substantive, part time position for more than two years and it is expected that the position will continue, the teacher may apply for conversion to permanent part time status in that position. She submitted that the Department will seek to maximise the filling of vacancies in the school by appointment of permanent teachers including permanent part time teachers, where reasonably practical.

(x) 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. Ms Lowson submitted that there is no change to the way in which casual school teachers will be engaged to replace teachers who are absent. She put that the two hour minimum daily engagement payment remains and that the casual teachers' rates of pay set out in schedule 6, tables 1 and 2 are loaded by five per cent in lieu of casual teachers receiving sick leave, family and community service leave, special leave absences and leave loading.

(xi) Clause 29, Relief in PPS6 or Teacher in charge, grade 1 positions is an expansion of the existing provision relating to PPS6, or hard to teach positions, relating to Teacher in charge grade 1, hospital school, or environmental educational centre. Ms Lowson put that the application provides for an upgrading of hospital school positions to be classified and remunerated equivalent with the environmental educational centres and there is also an enhancement to the provision of year adviser allowances where year advisers assist in Year 7 to 12 with students in high schools which have enrolments of 700 or more students. She submitted that there is also a reclassification for executive teachers. 22 Ms Lowson then turned to the TAFE section of the award. She submitted that this section commences with a new clause 38, titled "Contribution to Institute Output Requirements" which is complemented by schedule 13, "Strategies for Maximising Annual Student Contact Hours in TAFE". She put that this particular provision is relevant to the provision of funds by the Federal Government. It specifies the contribution of teachers to the achievement of output requirements as measured in Annual Student Contact Hours. 23 Ms Lowson submitted that clause 40 is a new clause dealing with "Duties of Teaching", which is supported by the documents found at item 12 of exhibit 2, entitled "NSW TAFE Commission Teachers and Other Educational staff Salaries and Conditions Award 1996 Role of the Teacher Document". She submitted that these provisions arise out of working parties established by the parties to the award to address these particular matters. 24 Ms Lowson put that clause 41 is also a new clause dealing with the allocation of duties. She put that this clause deals in appropriate detail with matters specific to TAFE, such as the five non-teaching weeks per annum and hours associated therewith; and administrative and co-ordination duties of particular positions such as adult literacy officers and special program co-ordinators. She also put that clause 42.4 is of particular relevance, as it deals with the five non-teaching weeks. Additionally clause 43, deals with administrative duties and introduces a change by reference to the weighted teaching hours agreement negotiated prior to the making of the 1996 award. She then referred to document 13 found in exhibit 2, a copy of the TAFE Commission Gazette of 16 December 1998, which provides appropriate detail in respect to these matters. 25 Mr Menzies adopted the submissions of Ms Lowson. He expressed the consent of the Department to the application. However he discounted the material contained in exhibit 2 other than those documents specifically referred to in the award. In this regard, Mr Menzies put that the relevant documents are the professional protocol and teacher performance document only. 26 The parties were in accord that the award sought satisfied the requirements of the Anti Discrimination Principle. The required undertaking is found at clause 23 of the application. 27 On completion of the outline of changes to the award and initiatives agreed between the parties, Mr Crawshaw turned to the issue of the application of s23 of the Act and the affidavits filed by the parties to the application pursuant to Practice Direction No.6 (2000) 317 NSWIG 256 in relation to the application of that section. 28 Mr Crawshaw referred to affidavits sworn by Ms Simpson and Mr Irving and put that the introduction of the temporary teacher classification is, in the view of the Federation, a significant matter in consideration of the question of 'equal remuneration' pursuant to s 23 of the Act. It was submitted that the introduction of that classification represented a substantial step towards providing equal remuneration for men and women for the purposes of s23 of the Act. Mr Crawshaw referred to the affidavits of Ms Simpson and Mr Irving, and submitted that there was a difference of opinion between the parties as to whether there was further to be done to achieve equal remuneration or whether the task was complete. 29 However, the Federation submitted that a review as to 'equal remuneration' should occur, in accordance with the leave reserved clause of the award. 30 The Department did not share this view, acknowledging, however, the position expressed by the Federation. Mr Menzies submitted that the issue would be addressed, if need be, at an appropriate time in the future.

Consideration 31 We shall firstly deal with the matters attracting particular consideration in the proceedings; namely, the application of s23 of the Act; the proposed clause 23.3.8 and the leave reserved provisions. 32 In considering the application of s23 of the Act, it is appropriate to set out the relevant parts of the affidavits filed pursuant to Practice Direction No.6, namely the affidavits of Susan Jane Simpson, President of the Federation, and Richard Paul Irving, General Manager of Personnel within the Department. 33 Ms Simpson deposed that: 2. The New South Wales Teachers Federation ("the Federation") and the Director General of the New South Wales Department of Education and Training and the Managing Director of the New South Wales TAFE Commission ("the employer") by consent, apply to the Commission to make the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award ("the award") for the grounds and reasons set out in the application. 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 34 Mr Irving deposed that: 3. I contend that the draft consent award so filed provides equal remuneration and other conditions of employment for men and women doing, work of equal or comparable value as required by section 23 of the Industrial Relations Act 1996. 4. The basis of my contention is that the draft award provides: (a) equal rates of pay and allowances for men and women; (b) the same eligibility criteria for employment for men and women for each job classification encompassed in the draft award;

(c) the same duties for men and women under each job classification encompassed in the draft award and

(d) conditions of employment which ensure equal access to employment for men and women. In the year 1999 permanent teaching staff in schools comprised 17,340 men (34%) and 33,285 women (69%). In TAFE permanent teachers and other education staff comprised 3,223 men (57% and 2,406 women (43%). 35 With respect to the issues raised by these affidavits 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. 36 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. 37 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. 38 Practice Direction No.6 derives from the decision of a Full Bench of the Commission in Re Equal Remuneration Principle (2000) 97 IR 177. In that judgment the Full Bench made the following observations with respect to s23 of the Act (at 215): Finally, and having in mind the cases advanced by the parties as to the proper construction of the Act which we have dealt with, we announce that a Practice Direction will, in due course, issue to require parties seeking a consent award to file with the application an affidavit stating the basis upon which it is contended that the proposed award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. This material will form the evidentiary basis upon which the Commission will in future base its consideration of the requirements of s23 of the Act. 39 The requirements of s23 of the Act were dealt with by the Full Bench in Re Equal Remuneration Principle at 203-204 as follows: What then does s23 require of the Commission? Some consideration was given to this by Walton J, Vice-President in Re Riverina Water County Council Enterprise Award 1998 (1999) 87 IR 24. His Honour observed (at p26): 'The word "must" appearing in s23 is mandatory in nature and imposes a requirement upon the Commission in all circumstances where it exercises its jurisdiction to make an award (see State Personal/Carer's Leave Case 1998 . See also Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J in dissent). The well settled meaning of the word "ensure" as "guaranteeing, securing or making certain" in the context of ss15 and 16 of the Occupational Health and Safety Act 1983 (NSW): Workcover Authority of NSW (Inspector Plouright) v Shaft and Tunnel Pty Ltd (unreported, NSW Industrial Relations Commission, Peterson J, 16 May 1997), p 3); (and see Carrington Slipways Pty Ltd v Inspector Callaghan (1985) 11 IR 467 at 469-470 and Workcover (Inspector Reid) v CSR Ltd t/a CSR Wood Panels (unreported, NSW Industrial Relations Commission, No CT 1176, 10 August 1995, pp 19-21) is, in my view, applicable to the use of that word in s23 of the Act. In our view, the section requires that in determining what remuneration and other conditions of employment are to be fixed by an award consideration is to be given by the Commission to the remuneration and other conditions of employment proposed in the award for men and women performing other work of `equal or comparable value' so as to ensure that such remuneration and other conditions are indeed equal. In other words, the Commission must ensure that the remuneration and other conditions of employment which the award prescribes are the same for men and women under the award who are performing the same work or different work but which has equal or comparable value. 40 We concur with these conclusions. Additionally as to the operation of s23 of the Act, we agree with the approach of Walton J in Re Riverina Water County Council Enterprise Award 1998 (1999) 87 IR 24 at 26 as follows:

In construing such provisions the ordinary principle that requires that particular provisions of a statute must be read in the light of the statutory objects is of particular significance. There is a special responsibility to take into account and give effect to the statutory purpose: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359. Section 3(f) is in the following terms: "To prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value". The object repeats the statutory imperative of s23 to ensure equal remuneration for men and women doing work of equal or comparable value (although it does not refer to 'other conditions of employment'). However, s3(f) also contains the objective to 'prevent and eliminate' discrimination in the work place. Both in the ordinary sense of the words and, in particular, in this statutory context, the words 'prevent' and 'eliminate' create a wide ranging obligation in relation to discrimination in the work place. The legislature directs attention to both preventative as well as remedial action, and by the use of the word `eliminate' encompasses in the objective both deliberate and thoughtless or reckless acts of discrimination : X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248 at 257. The clear and evident purpose of s23 (particularly when operating in conjunction with s19(3)(e) which imposes requirements in the case of award reviews) is to achieve equal remuneration for men and women doing work of equal or comparable value by preventing the inclusion in and expunging from the system of awards in this State provisions which fail to meet this requirement. 41 In adopting these principles, we wish to make it clear that we do so in the light of and consistently with, the terms and effect of the Equal Remuneration Principle adopted by the Full Bench in Re Equal Remuneration Principle. We wish to make it clear that, in relation to an application to make a new award, the Commission must consider whether the terms of that award provide equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. This will necessarily require an examination of the evidence brought to the Commission pursuant to Practice Direction No.6. 42 If a term of an award gives rise to issues under s23 of the Act (or if the evidence reveals that the operation of the award would give rise to such issues), then it is incumbent upon the Commission to resolve that issue, having regard to the requirements of s23. In the present case, the Federation eschewed any notion that any term of the award had the effect of offending s23 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. 43 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. 44 This is not to say that a mere assertion by parties to a consent award that s23 of the Act is not attracted in a particular case would result in a conclusion being reached by the Commission that the requirements of s23 had been satisfied in any particular matter. It may well be appropriate that in a particular case the Commission may make further inquiries of the parties. However, in the present matter, and having regard to the evidence led in the proceedings, and the significant reforms introduced by the award consistent with s23 of the Act we do not consider this course to be warranted. We also note in this respect the leave reserved provisions contained within the award which will enable the parties to address any relevant issue which may arise. 45 During the course of making submissions as to clause 23, 'Alternative Work Organisation' Ms Lowson's attention was drawn to clause 23.3.8 which provides that: 23.3 Teaching staff in a school or other workplace may seek to vary its organisation in order to improve students' learning conditions and or to improve teachers' working conditions, provided that:

... 23.3.8 for the purposes of the award, the Alternative Work Organisation Committee will have authority to approve variations of work organisation which vary particular provisions of the award, but cannot exempt the staff from complying with the procedures under paragraphs 23.3.1 to 23.3.6 of this subclause." 46 The difficulty with this provision, as expressed, is that it purports to give parties authority to make variations to the award without the consideration of such variations by the Commission. 47 We have some doubts as to whether the proposed provision falls within the jurisdiction of the Commission. In any event, the proposed clause of the award is, in our view, inappropriate as it would permit essentially private treaty arrangements between the parties to alter the terms of the award without the superintendence by the Commission of such arrangements in accordance with the requirements of the Act. 48 The parties undertook to draft an alternate provision which falls within the jurisdiction of the Commission to award and retains the legislative requirement that awards may be varied by the Commission and not by the parties to them. A replacement clause 23.3.8 was received from the parties (which we accept) in the following terms: "Where the alternative Work Organisation Committee considers a proposed variation in work arrangements which complies with 23.3.1 to 23.3.6 above conflicts with the provisions of the award the parties may apply to the Industrial Relations Commission to vary the award by consent; and" 49 We turn now to the consideration of the leave reserved clause in the award. We do so having regard to the requirements of the Act and in particular s17, and further, having regard to the requirements of s19 of the Act. We do not consider that the proposed leave reserved clause is sustainable, as was put by the Federation, under s17(3)(d) of the Act. In the absence of any provision or arrangement which attracted the operation of s17(3)(a) of the Act, any application to vary the award made after the expiry of the nominal term of the award would need to satisfy the requirements of s17(3)(d). A leave reserved clause could not operate so as to oust the requirements of s17(3)(d). 50 However, different considerations arise where the leave reserved clause is a manifestation of the consent of the parties to the award. In the light of this consideration, we turn firstly to consider the operation of s17(3)(a). 51 In our view, s17(3)(a) should not be read down by the operation of s17(3)(c) or (d). Thus, where an application to vary an award is accompanied by the mutual consent of all parties to the making of the original award, then the Commission is not constrained by the provisions of s17(3)(c) during the nominal term of the award or s17(3)(d) after the nominal term of the award. In particular, the power of the Commission to vary an award during the nominal term of an award is not confined to circumstances where (assuming the consent of all relevant parties) the Commission considers that it is not contrary to the public interest and there is a substantial reason to do so. This is not to say that the Commission would not take into account the public interest in the exercise of its discretion to vary an award in accordance with s146(2), but merely that the Commission is not relevantly confined in the exercise of its power under s17(3) of the Act by such considerations. 52 This conclusion is based upon the following considerations:

(a) The provisions of s17(3)(a) - (d) are each conditioned upon temporal considerations. In the case of subs(3)(a) and (b), the sub-section refers to the power being exercised "at any time" and in subs(c) and (d) within a particular time frame associated with the nominal term of the award. Sub-section (3)(a) and (b) are each expressed in general terms, or at least in terms referring to a general period of time. The question arises as to whether the provisions of subs3(a) should be read down by the particular terms of subs3(c) and (d). In our view, this question must be answered in the negative. There is nothing on the face of the general provision in s17(3)(a) which suggests that the provisions should be read down. The expression "at any time" is clear and straightforward. It should be interpreted as having the plain meaning expressed by those words that the award may be varied at any time in the circumstances described in subs(3)(a) and not thereby confined by the temporal constraints arising under subs(3)(c) and (d). As was stated recently by the High Court of Australia in Australasian Memory Pty Ltd v Brien [2000] HCA 30 at 17 (applying Shin Cobe Maru Empire Shipping Co Inc (1994) 181 CLR 404 at 421) it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words. This position is even more apparent where the language used by the legislature in subs3(a) conveys its intention to have the provision interpreted widely. In these circumstances, cogent reasons would need to be advanced as to why the general words of s17(3)(a) would be read down and none is demonstrated on the face of the section.

(b) In any event, if the interpretation of the sub-section were too literal, then the result would be irrational: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304. Taken together, the totality of the time period described in subs17(3)(c) and (d) equates to the time frame described in subs17(3)(a), namely, "at any time", so that the effect of reading subs17(3)(a) down in terms of subs17(3)(c) and (d) would be to render the provisions of subs17(3)(a) nugatory. Whether the parties to an award consented would be irrelevant to the tests to be applied by the Commission; those tests simply being those stated in subs3(c) and (d). Likewise, to incorporate the requirement for mutual consent into subs17(3)(c) and (d), so as to read the provisions of subs17(3)(a), (c) and (d) cumulatively, would have a similar irrational result, as subs17(3) would then need to be read as limiting the power of the Commission to vary awards to circumstances where there was demonstrated mutual consent.

(c) It is appropriate in these circumstances to apply a purposive approach to construing the sub-section. The adoption of a purposive or non-literal approach to the provision is entirely consistent with the modern approach to statutory construction. That is, it is appropriate to ascertain the intention of the legislature through the object or purpose underlining the legislation and to ascertain the meaning of the words in the light of that object or purpose: Kingston v Keprose (1987) 11 NSWLR 404 at 423; New South Wales v Macquarie Bank Limited (1992) 30 NSWLR 307 at 319; Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 444 - 445; and Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 468 at 487. In our view, the legislative intention of s17(3) is obtained by reference to the words "mutual consent" appearing in subs17(3)(a). By the use of these words in subs(3)(a), and in the absence of any other defining characteristics of subs(3)(c) and (d) than the temporal considerations earlier discussed, the legislature intended to distinguish the operation of subs3(a) from subs3(c) and (d) by reference to the consent or non-consent of the parties to the making of the original award to its variation. Thus, the legislature intended that different criteria would apply to other variations of an award depending upon whether that application moved by consent of the relevant parties or not. This approach to the construction of the sub-section conforms with the objects and purpose of the Act. It gives primacy to consensual outcomes to processes initiated under the Act. This approach is reflected in the objects of the Act, as stated in subs3(g) and the dispute resolution procedures under the Act (see s133). Further, this approach to the construction of the sub-section also conforms with statutory objectives of encouraging and facilitating workplace reform (see subs3(h)) and promoting participation in industrial relations by employees and employers at an enterprise or workplace level (see s3(c)) because the construction adopted provides a basis upon which enterprise bargains may be given effect to in awards (see s3(e)) in all relevant circumstances or in the words of s17(3)(a), 'at any time'. 53 The next question which arises is whether, in the light of this construction of the Act, a leave reserved clause arising by consent of the parties is caught by the terms of s17(3)(a). In our view, this question should be answered in the affirmative. The Full Bench considers that the reference to "mutual consent" in s17(3)(a) is sufficiently wide to comprehend the consent reached between the parties in the making of a leave reserved clause. 54 Leave reserved clauses in awards have historically (and continue in awards of this Commission) to serve the purpose of reserving to the parties to an award leave to bring an application to vary that award in a designated area during its currency. However, the provisions do not represent a prior adjudication on the merits of the matters reserved, but merely preserve the right to bring such an application during the life of the award. 55 The question arises as to how a clause having such a function and purpose would inter-relate with s17(3)(a) of the Act. In our view, the leave reserved provision in those circumstances has the effect of identifying in advance of an application to vary, the mutual consent necessary to give rise to the opening of an award during its nominal term for the purposes of s17(3)(a) of the Act. This not only accords with the plain language of s17(3)(a) of the Act, but gives effect to the objects of the Act by encouraging the resolution of disputes and the facilitation of arrangements which are conducive to industrial peace and harmony. The making of a leave reserved clause continues to act as a means of facilitating the resolution of disputes including disputes over the making of awards and acts as a means of identifying to employers and prospective employers, the issues reserved for attention during the nominal term of the award. Matter No. IRC5471 of 2000 56 We are satisfied that the award sought comes with the genuine consent of the parties. The application meets the requirements of the Act and satisfies the relevant wage fixing principles. In particular, we note that the award conforms with the requirements of s10 of the Act. 57 Overall, the application is one having industrial merit as it introduces substantial improvements in the structure and organisation of the teaching services of this State and rewards teachers for their contribution under the new arrangements. 58 Accordingly, we confirm the award made by the Full Bench on 16 November 2000 in terms of Schedule A to the application, as amended in accordance with paragraph 6 of this decision.

Matter No IRC 5522 of 1999 59 This matter concerns a Notice of Award Review pursuant to section 19 of the Act in relation to the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award. The parties submitted that the review was no longer appropriate given the making of a new award in Matter No IRC 5471 of 2000 and sought a rescission order in respect to the 1996 Award. We have determined to rescind that award.

Other Proceedings 60 The parties sought leave to discontinue proceedings in Matters No.'s IRC 6099, 6600, 6601, and 6308 of 1999 and 4111 of 1998. Leave to discontinue is granted and those matters are accordingly concluded.

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