Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award & Anor [2008] NSWIRComm 209 State Wage Case 2008 [2008] NSWIRComm 122

APPLICANT (MATTER NOS IRC 1979, 1980, 2241 & 2242 of 2008) RESPONDENT (MATTER NOS IRC 2042 & 2043 of 2008) Mr S Crawshaw SC Mr M Gibian of counsel New South Wales Teachers Federation LEGAL REPRESENTATIVES:

RESPONDENT (MATTER NOS 1979, 1980, 2241 & 2242 of 2008) APPLICANT (MATTER NOS 2042 & 2043 of 2008) Mr P Kite SC Ms M Fraser of counsel NSW Department of Education and Training

CROWN EMPLOYEES (TEACHERS IN TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR VARIATION RE SALARIES AND OTHER MATTERS

CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR VARIATION RE SALARIES AND OTHER MATTERS.

CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD 2009. APPLICATION BY DIRECTOR-GENERAL DEPARTMENT OF EDUCATION AND TRAINING FOR A NEW AWARD.

CROWN EMPLOYEES (TEACHERS IN TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD 2009 APPLICATION BY DIRECTOR-GENERAL DEPARTMENT OF EDUCATION AND TRAINING FOR A NEW AWARD

CROWN EMPLOYEES (TEACHERS IN TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR A NEW AWARD.

CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. APPLICATION BY NEW SOUTH WALES TEACHERS FEDERATION FOR A NEW AWARD.

1 These proceedings concern competing applications for the making or variation of awards concerning salaries and other conditions of employment for teachers engaged in government schools and in the Technical and Further Education Commission ("TAFE").

2 By applications filed on 17 October and 2 December 2008, the Teachers Federation of New South Wales ("the Federation") brought claims for improvements in wages, allowances and working conditions under ss 11 and 17 of the Industrial Relations Act 1996. It did so initially by applications to vary wages and allowances in the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award ("the awards") (Matter Nos IRC 1980 and 1979 of 2008) and, subsequently, by applications for new awards to replace the awards (Matter Nos IRC 2242 and 2241 of 2008). The applications variously provided for improvements in salaries, allowances and working conditions. 3 The New South Wales Department of Education and Training ("the Department") also brought applications for new awards (Matter Nos 2042 and 2043 of 2008). The Department sought, by its counter applications, salary increases and "employee related cost savings" (for increases above 2.5 percent per annum) in accordance with the New South Wales Government Public Sector Wages Policy (collectively the applications by the Federation and the Department shall be referred to as "the applications" or "the application proceedings"). 4 The initial applications to vary brought by the Federation were the subject of a decision as to a preliminary issue by a Full Bench of the Commission on 4 November 2008: Re Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award & Anor [2008] NSWIRComm 209. As foreshadowed by the Full Bench in that decision, the initial applications for variation and related applications brought by the Department (Matter Nos IRC 2042 and 2043 of 2008) were scheduled for conciliation before the Commission as presently constituted. The subsequent applications brought by the Federation were joined with those matters for the purposes of conciliation. Conciliation conferences in the application proceedings were convened by the Commission on 16, 17, 22 and 23, 30 and 31 December.

5 Despite the substantial time and energy devoted to the conciliation by the parties and the considerable progress made during the course of private conferences chaired by the Commission in relation to the respective applications, by the close of proceedings on New Year's Eve 2008 the parties were unable to reach an agreement and some significant issues remained unresolved.

6 In concurrent dispute proceedings then before the Commission (Matter No IRC 2414 of 2008), an application was made by the Department under s 135(5) of the Act for the Commission to issue a certificate of attempted conciliation under s 135(2) of the Act. The Federation opposed the issuing of the certificate. The parties were heard in that respect. 7 On that day, the Commission issued a Statement in which the Commission concluded that, having regard to the negotiating positions of the parties at that time, there was no reasonable likelihood that the matters would be resolved by conciliation. That conclusion had some significance for the dispute proceedings. Section 135(6) of the Act required that, in those circumstances, a Certificate of Attempted Conciliation must be issued without delay. In fact, a Certificate was issued on 31 December 2008 and provision was made for, inter alia, the initiation and hearing of proceedings for dispute orders under Pt 2 of Ch 3 of the Act, (in view of the then impending industrial action by the Federation's members on 28 and 29 January 2009 and 4 and 5 February in the case of the Western Division of the Department's operations). 8 On 5 January 2009, the Department made an application for dispute orders which was heard before Marks J on 7 January. His Honour's decision in that matter is reserved at the time of the making of this Recommendation (the decision having been postponed in the light of further developments described below). 9 On 15 January 2009, the parties jointly approached the Commission to resume the conciliation proceedings in view of advancements upon the draft terms of settlement under discussion on 31 December 2008. The Commission agreed to that course and a date for resumption was fixed for today having regard to some intervening events, including a meeting of the Executive of the Federation. The Commission indicated that, upon resumption, it would consider the making of a Recommendation both as to the settlement of the substance of the parties' claims and, in conjunction, any remaining prospect of industrial action. 10 It has been unnecessary to further consider the question of industrial action, as the Federation announced yesterday that it would discontinue the proposed stoppage in view of the prospects for settlement. 11 After receiving submissions from Mr S Crawshaw SC, for the Federation, and Mr P Kite SC, for the Department, today I have formed the view that, despite significant progress by the parties in building upon the settlement terms under consideration on 31 December, the matter will not be resolved without further intervention by the Commission. 12 In my view, it is now appropriate to make a Recommendation for the resolution of the competing applications. The conciliation process has been exhaustive (now occurring over seven days). The Commission is fully appraised of the position adopted by each party in the conciliation process (and the basis for the view held by each party). There is a good prospect that the parties will now accept a Recommendation by the Commission arising out of the conciliation process. They have requested that the Commission issue a Recommendation. 13 In making a Recommendation in settlement of the respective claims of the parties, I have borne in mind the final bargaining position of the parties and what I consider represents a fair compromise of their respective claims. The Recommendation should do nothing to embarrass the positions adopted by either party in their formal applications and will provide a well deserved increase in salaries for teachers employed in the service of government schools and TAFE in this State. The outcome for wages and other conditions of employment is consistent with the requirements of the Act and the wage fixing principles as announced in the State Wage Case 2008 [2008] NSWIRComm 122. 14 The Recommendation does not wholly resolve all issues between the parties as to cost measures with respect to TAFE. However, the Recommendation provides for a procedure by which any such issues may be resolved.

15 The Commission recommends that the respective applications be settled in accordance with documents incorporated within the Commission's files in Matter No IRC 2042 and 2043 of 2008 respectively (according to the designated subject matter of the Recommendation) which are described as a Recommendation of the Commission in the matters referred to in this Recommendation and which bear today's date and are initialled by the Commission. 16 The Recommendation provides for salary and allowance increases for teachers in government schools and TAFE commencing on the first pay period on or after 1 January in the years 2009, 2010 and 2011. Those salary and allowance increases are 4.4 percent, 3.8 percent and 3.8 percent respectively in each successive year. 17 If the Recommendation is accepted, the applications by the Federation shall be discontinued and the applications made by the Department amended, by consent, to reflect the terms of the Recommendation. New awards will be made covering the employment of teachers in government schools and TAFE which shall operate until 31 December 2011.

18 Having regard to the meeting of the members of the Federation scheduled for 6 February 2009, the parties shall report to the Commission their response to the Recommendation at 9.30 am Monday 9 February 2009 (the Department may, however, advise its position earlier if it is so advised). If settlement is reached, the respective applications shall be listed for hearing or discontinuance, as applicable, at 10 am Wednesday 18 February 2009. 19 The new award for government schools shall, in accordance with the Recommendation made in that respect, fully and finally resolve the respective applications of the parties. The Recommendation with respect to TAFE teachers requires further discussion between the parties as to cost savings. Hence, it is necessary to make provision for further proceedings in relation to Matter No IRC 2043 of 2008. In the event that the Recommendation is accepted, that matter will be listed for directions on Tuesday 17 March 2009. The parties have liberty to, by consent, convert that listing. For that reason, the Commission shall reserve the day for possible further proceedings in the event that that liberty to apply is exercised.

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