Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (No 3), Re [2004] NSWIRComm 134 - NSWIRComm 2004 case summary — Zoe

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Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (No 3), Re [2004] NSWIRComm 134

[2004] NSWIRComm 134

Industrial Relations Commission (NSW)|2004-05-21|Before: Wright J, Walton J, Boland J, Grayson DP, Mr P, Ms J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-05-21

Before

Wright J, Walton J, Boland J, Grayson DP, Mr P

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

CITATION : Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (No 3), Re [2004] NSWIRComm 134 APPLICANT New South Wales Teachers' Federation

[2]

RESPONDENTS PARTIES : Director General - Department of Education Managing Director - TAFE NSW

[3]

INTERVENORS Minister for Industrial Relations Labor Council of NSW FILE NUMBER: IRC 3749 of 2003 CORAM: Wright J President; Walton J Vice-President; Boland J; Grayson DP; McLeay C CATCHWORDS : Award - Wage fixation - Application for increased rates of pay and allowances - Teachers in schools and TAFE and related employees - Application to adduce further economic evidence by Intervenors - Limited basis upon which material to be tendered - Nature of material - Balance of reasons - Nature of relevant public interest considerations - "Clean hands" - Rule of law - Application granted. LEGISLATION CITED : Industrial Relations Act 1996 s 10 s 146 s 167 CASES CITED : Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award Re [2003] NSWIRComm 479 Public Hospital Nurses' (State) Award Re (No 3) (2002) 121 IR 28 HEARING DATES: 05/20/2004 DATE OF JUDGMENT: 05/21/2004

[14]

32 In arriving at this interim view we have also taken into consideration the Minister's submissions regarding the economic impact of the claim. We have not formed any concluded view on the ultimate increase to be awarded. However, the interim increase we have decided upon would not on the economic evidence, in our opinion, have adverse implications for the economy. In this regard, we note the New South Wales economy is in good shape at the present time and the outlook is favourable. In these circumstances we consider it to be unnecessary at this interim stage to address in any more detail the issues arising from the Minister's submissions except to note that in answer to a question from the Full Bench Mr Kite indicated that it was not the Government's position that because it had budgeted for wage increases in the public sector of 3 per cent per annum over the next two years the Commission should not award more than those amounts. Mr Kite said that his client's role in the proceedings was to put economic information before the Commission to allow the Full Bench to exercise its statutory functions having regard to the requirements of s 146 of the Act. 33 As we have already noted and as the Full Bench observed in Re Public Hospital Nurses' (State) Award (No 3) (2002) 121 IR 28 at [124], any interim increase must be approached cautiously so as not to embarrass the final result. Moreover, the applicant for an interim increase must show there are special circumstances existing that would justify granting such an increase, apart from the fact that the wage fixing tribunal has accepted that in any final decision wage increases will be granted: See s 16(4) of the Industrial Relations Act . 34 Bearing in mind those limitations, we nonetheless consider that an interim increase is warranted essentially upon the grounds put for interim relief by Mr Crawshaw SC for the Federation. We take particular note in that regard of the undertakings provided by the Federation in its written submissions on interim relief and the further undertakings made by Mr Crawshaw in his oral submissions. In this latter respect, Mr Crawshaw was questioned by the Full Bench regarding reports that the Federation may have been planning industrial action in the new year. We were informed that no final decision had been made by the Federation in this regard and that, in any event, the Federation undertook that it had no intention of taking any form of industrial action in relation to any decision given by this Full Bench.

[22]

· The Commission should have before it the latest available New South Wales Budget data so that it may be supplied with the latest estimates and data when considering the public interest for the purposes of making its final determination of the Federation's application. · The material put forward to the Commission does not alter the principles upon which the evidence given in the proceedings by Mr Pierce and Dr Guthrie was based, but rather updates some of the budget figures referred to by those witnesses. For example, the updated data does not alter the fact that any increase in teachers' wages may only be dealt with by any one or mixture of spending reductions/cuts; revenue increases; or the incurring of debt. · It was not anticipated that further affidavit evidence or cross examination would be necessary in respect of the evidence which the Intervenor seeks to adduce and it is submitted that the Commission would have regard to the changed data within the same conceptual framework established by the evidence previously provided. · The new information provided to the Commission shows that significant policy changes have been required in order to accommodate the changes in funding to New South Wales as a result of the change of the relativities of the Commonwealth Grants Commission and other impacts. It is submitted that those significant changes have left the net Budget position in a similar position to that which was estimated at the Half-Yearly Budget Review. · Notwithstanding the changes that have been made, the estimate contained in the 2003/04 Half Yearly Budget Review for the Budget Result for 2004/2005 represents a very significant change from the estimate in the 2003-2004 State Budget. · Ultimately, there has been a downward revision of the projected Budget Result (as at the date of the Mini-Budget) of $603 million, from a projected surplus of $303 million to a projected deficit of $300 million. · In these circumstances, the evidence of Mr Pierce about the significance of any increase in recurrent expenditure, as a result of these proceedings, to the New South Wales fiscal position is highlighted. · The Commission would take these new estimates into account when considering the impact on the public interest of a further increase in response to the Federation's claim.

[32]

15 We have decided to admit the additional material proposed by the Minister. The decision to do so, however, was very finely balanced. There are four compelling reasons that support a decision not to re-open and admit the further material: 1. The application by the Government was plainly made very late given that the Interim Award expires on 30 June 2004 and a legitimate expectation exists amongst teachers that a final decision on their claim would be handed down before the Interim Award expires. The Government could have sought to have much of the additional evidence adduced earlier. Alternatively, in light of the Federation's application for an interim increase and in the knowledge that further budgetary information was to be released, it was open to the Government, before the close of proceedings in December 2003, to reserve the Government's position in order that additional material might be tendered before any final decision was made by the Commission on the Federation's claim. This would have avoided any potential adverse consequences of a late re-opening application. 2. Despite Mr Prince 's strenuous efforts, the material tendered relates only to the fact that government revenue is projected to decline. The material does little to assist the Commission in understanding the implications of the decline in revenue for the economy. Indeed, the Intervenor has, in fact, provided us with very little assistance in interpreting the new data with it being submitted that we should make of it that which we will. 3. Because of the late tendering of the material and the need to provide the applicant with a proper opportunity to respond, the legitimate expectations of teachers that a final decision on their claims would be handed down before 30 June 2004 may be placed in jeopardy. 4. We have a real apprehension about an application to re-open at such a late stage because of our concern about setting a precedent that a party to proceedings might apply to re-open at any time up to judgment.