Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209

Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award [2008] NSWIRComm 209 - NSWIRComm 2008 case summary — Zoe

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The estimated time for hearing of the application is 3-5 days, depending on how much evidence would be called by the Respondent to each Award. 4 On 24 October 2008, a Major Case Conference was conducted, chaired by Boland J, President. It became apparent that the applicant was seeking a hearing of its application prior to the expiry date of the current awards, with a view to seeking a decision that would apply from 1 January 2009. 5 The respondents to the applications are the Director General of the Department of Education and Training and the Managing Director of TAFE. The respondents opposed the Federation's applications and opposed what was, in effect, an application by the Federation for expedition. The respondents foreshadowed that they intended to file applications of their own for new awards. Those awards would be consistent with the Government's 2007 Public Sector Wages Policy, which provided that any increases to employee related expenses, including wages, allowances, superannuation etc, exceeding 2.5 per cent per annum, must be funded through employee related reform measures and cost savings. 6 The respondents contended that the Federation was prevented from proceeding with its claims by virtue of the no further claims provisions in the two current awards. It was put that the Federation's applications should not be dealt with separately from the respondents' foreshadowed applications. It was advised that in light of the current disagreement between the parties over the Government's Public Sector Wages Policy, any arbitration proceedings were likely to take "weeks". However, the respondents indicated that they were willing to participate in any conciliation proceedings relating to the parties' various applications. 7 In light of the procedural disagreement between the parties, the President constituted a Full Bench to deal with the question of whether the Federation's applications should be heard expeditiously, that is prior to 31 December 2008 when the two awards expired, and separately from the respondents' applications. The Full Bench heard the parties on 30 October 2008. This decision deals with the procedural question. Consideration

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8 The position is that the Teachers Federation seeks an expedited hearing of its applications and an operative date for any increase from 1 January 2009. It contended that this is justifiable on the basis that teachers have not received a salary increase for 12 months, at a time when New South Wales is experiencing a period of relatively high inflation, (the increase in the Consumer Price Index for Sydney for the September 2008 quarter was 4.9 per cent compared to the national average of 5.0 per cent), which has eroded the real value of the salaries, rates of pay and allowances of teachers covered by the subject awards. Further, that it is appropriate for the matter to proceed immediately to arbitration, because there is a fundamental and irreconcilable difference between the parties, that being the Government's Public Sector Wages Policy. 9 The Federation also indicated that there were further claims that it would wish to pursue at some later time, either by conciliation or arbitration. 10 On the other hand, the respondents' position is: (i) they are bound by the Government's wages policy; (ii) in accordance with that policy they intend, by administrative action, to increase salaries under the subject awards by 2.5 per cent from 1 January 2009; (iii) the no further claims provisions in the subject awards prevents any arbitration of the applicant's claims prior to 1 January 2009; (iv) they had filed, on 30 October 2008, applications of their own to rescind and replace the subject awards consistent with the Government's wages policy, involving salary increases over the next three years funded to the relevant extent by cost savings prescribed by measures in the proposed awards; (v) they are prepared to engage immediately in conciliation in relation to their proposed awards (and in relation to the Federation's claims); and (vi) if arbitration becomes necessary, they submit that each of the awards will need to be heard separately and estimate each will require a hearing time of two weeks, thus a total of four weeks in 2009.

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The corresponding provision in the Teachers in TAFE Award (cl 43) is essentially the same as the Schools Award. 12 Senior counsel for the respondents, Mr Kite, submitted that "technically" a party to an award containing a no further claims provision of the type in the subject awards could not make a claim, including an application to vary or rescind an award, during the award's nominal term. However, it was conceded that it would be within the Commission's discretion to countenance an application to vary such an award, or an application for a new award, being filed prior to the nominal expiry date of the award and to proceed to deal with the application by conciliation, but not by arbitration. 13 Senior counsel for the applicants, Mr Crawshaw, submitted that the no further claims clauses only prohibited the making or hearing of an application for changes to salaries, rates of pay, allowances or conditions of employment that were sought to be made operative prior to the nominal expiry date of the award, 31 December 2008. He contended that the clauses did not prohibit the making or hearing of any application prior to 31 December 2008. 14 In the course of argument reference was made to Re Corrections Health Service Nurses' State Award (1999) 90 IR 235, Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award 2002] NSWIRComm 144; (2002) 116 IR 361, Re NSW Education Employees (Non-Continuing Contract Employment) Award (1998) 92 IR 239 and Re Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs [2008] NSWIRComm 117. Each of those cases addressed award provisions relating to no further claims in one context or another, although we note that the claims that were being considered in each case were claims that were sought to be made operative during the period covered by the relevant no further claims provision. That is not the case here. 15 We would observe that no extra claims undertakings were adopted in the early 1980s in the federal Metal Industry Award 1971, as a device to prevent further award, but particularly over award, claims being made for an agreed period. Such undertakings have become a standard feature of wage fixing arrangements both at the federal and State level, especially through the mechanism of wage fixing principles. Commendably, employees, unions and employers have regarded their commitments to make no extra claims during the life of an award or agreement as solemn undertakings and rarely have they been breached. The commitments have been regarded as morally, as well as legally binding.

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(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. 20 The Federation's case was that the awards' no extra claims provisions did not preclude the Commission from permitting its applications from being heard as it sought, whether it was s 17(3)(c) or (d) which governed such a hearing. 21 In our view, that argument did not assist the Federation's case. In either case the section requires that the Commission have regard to the public interest. In our opinion, because of the criticality of the no further claims concept to wage fixing, consistently with the public interest, we are not disposed to weaken that concept, certainly not to the extent proposed by the applicant in these proceedings. We agree with Wright J that a strict approach to the construction of no further claims provisions should be applied. That strict approach, however, must pay regard to the need for a "sensible industrial outcome", which allows that "meanings which avoid inconvenience or injustice may reasonably be strained for": see Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [96] per Kirby J, referring to the reasons of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184. 22 We regard it as sensible and practicable for a party wishing to vary an award or to replace the award with a new one, to make the appropriate application at a time prior to the expiry of the current award, but reasonably proximate to the expiry date, even in the case of an award containing a no extra claims provision. That will at least put the other party(s) on notice of what is being sought and may assist in avoiding prolonged delays in processing the claim, especially if it is likely to involve complex matters or disputed matters entailing a large evidentiary component, requiring a lengthy hearing. It would also allow the parties to engage in early discussions about the matters that are the subject of the application, if they consent to doing so. This may involve access to the conciliation processes of the Commission, if they agree. 23 This would all be done in the absence of any industrial action or threat of industrial action. A consequential benefit of this process might be to reduce lengthy periods of retrospective adjustments to salaries and the like. The Commission, however, will not commence any arbitration of the claims prior to the expiry date of the current award other than in the most exceptional of circumstances, which do not exist here. 24 We note the Federation's concern that teachers have not received any salary increase since 1 January 2008 and that inflation is now running at about 5 per cent. That is obviously eroding the real value of teachers' salaries. However, the respondents have indicated that they are prepared to consent to an increase of 2.5 per cent payable from 1 January 2009. Such an increase would provide some immediate relief for teachers and, in our opinion, together with other measures that we will propose, relieves the urgency that is said to accompany the Federation's applications. If there is consent, we propose to vary the awards to apply a 2.5 per cent increase from 1 January 2009. 25 Additionally, the Commission will chair conferences of the parties in November and/or December 2008 according to dates that are convenient. If necessary, the Commission will be available during the law vacation to continue the conferences. The applications that will be the subject of the conferences will be those that are the subject of these proceedings, namely, Matter Nos IRC 1979 and 1980 of 2008 and those filed by the respondents, namely, Matter Nos IRC 2042 and 2043 of 2008. All of these applications seek increases to salaries. The respondent's applications, however, make conditional on cost savings any salary increase above 2.5 per cent. It would seem quite illogical to deal with the applications in separate conciliation proceedings. Should the Federation file the further applications which it has foreshadowed, those applications will also be dealt with in these conciliation proceedings. 26 Whilst we recognise that there is a fundamental disagreement between the parties over the role to be played by the Government's Wages Policy, that disagreement has existed in other significant public sector cases dealt with by the Commission this year. However, with the benefit of conciliation and, ultimately goodwill, claims for salary increases have been satisfactorily resolved. 27 Nevertheless, we have taken the step of reserving three weeks for arbitration proceedings commencing on 16 March 2009 in the event that conciliation is unsuccessful. Questions of joinder of the various matters may be considered in the conciliation conferences if that becomes necessary. If such questions cannot be resolved by agreement, the Commission will determine them. Orders

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