Director General, NSW Department of Education and Training v NSW Teachers Federation

LEGISLATION CITED: Industrial Relations Act 1996

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

Mr S Benson of counsel (Notifier) for NSW Department of Education and Training LEGAL REPRESENTATIVES: Mr S Crawshaw SC (Respondent) for NSW Teachers Federation

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: BOLAND J, President WALTON J, Vice-President GRAYSON DP

NOTIFICATION UNDER SECTION 130 BY DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING OF A DISPUTE WITH NEW SOUTH WALES TEACHERS FEDERATION RE CLAUSE 47

1 This matter concerns a dispute between the Director-General of the Department of Education and Training ('the Department') and the NSW Teachers Federation ('the Federation') over the employee related cost savings appropriate to fund salary increases granted by the Commission in the making of a consent award, known as the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2009 ('2009 award') on 19 February 2009. 2 In accordance with cl 47.3 of the award, that dispute was listed for arbitration before a Full Bench of the Commission from 14 to 18 September 2009. However, the Commission, constituted by Walton J, Vice-President has, pursuant to its powers under Part 1 Chapter 3 of the Industrial Relations Act 1996 ('the Act'), and by consent of the parties, endeavoured to resolve the issues in dispute by conciliation. Those processes are yet to produce settlement of the issues.

3 The 2009 award provided for salary increases to the common incremental salary scale therein of 4.4 per cent from 1 January 2009, 3.8 per cent from 1 January 2010 and 3.8 per cent from 1 January 2011.

4 The 2009 award was made in consequence of the parties accepting a Recommendation made by the Commission on 21 January 2009: Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award and others [2009] NSWIRComm 2. That Recommendation was the subject of specific endorsement by the Executive of the Federation. The Recommendation proposed the salary increases mentioned above and provided for employee related reform measures and cost savings.

5 The Recommendation of 21 January 2009 identified that it did not "wholly resolve all issues between the parties as to cost measures with respect to TAFE" and that the "Recommendation provides for a procedure by which any such issues may be resolved" at [14]. 6 Clause 47 of the 2009 award was a manifestation of these processes. It is a facility by which the parties fully resolved differences in wages in return for a partial satisfaction of any requirement for cost savings, with the balance of such measures being resolved in accordance with the provisions of that clause.

7 Clause 47 of the award was in the following terms: 47. Further Employee Related Reform Measures and Cost Savings 47.1 In order to fund the salary increases provided under this award, the parties have committed to the identification and implementation of further employee related reform measures and cost savings to improve TAFE operational efficiency and competitiveness. 47.2 The parties agree to establish immediately a working party to identify and finalise the reforms by 3 April 2009. The working party shall consider a range of initiatives, including direct teaching hours of work of TAFE teachers and time credit hours to fund (to the extent not already achieved by the employee related reform measures already agreed and implemented by the parties as outlined in the Industrial Relations Commission Recommendation [2009] NSWIRComm 2 relating to IRC Matter Numbers 1979 of 2008, 1980 of 2008, 2042 of 2008, 2241 of 2008 and 2242 of 2008) the salary increases beyond 2.5% each year. 47.3 Should the working party not identify the necessary employee related reform measures and cost savings or should any dispute arise during the process, the parties acknowledge and commit to take all necessary steps so that the Industrial Relations Commission shall arbitrate on and determine by June 2009, the employee related cost savings necessary to fund the salary increases under this award.

8 As mentioned above, cl 47 contemplated further proceedings to resolve the question of employee related reform measures and cost savings. The clause provided an exception to the 'no extra claims' provisions of the Award so as to permit parties to the Award to make claims in accordance with its provisions. It was contemplated that the Department may activate the provisions of the clause by filing a Notification of Dispute. This step was, in fact, taken on 14 April 2009 and, subsequently, on 1 July 2009 by the filing (within the dispute proceedings) of an application to vary the award pursuant to s 17 of the Act. 9 Since the award was made, the Commission determined that the terms of two other awards should be incorporated into the TAFE award, namely, the Bradfield College (Department of Education and Training) Salaries and Conditions Award and the Crown Employees (Teachers in TAFE Children's Centres) Salaries and Conditions Award. In consequence, a new award was made on 12 August 2009 entitled 'Crown Employees (Teachers in TAFE and Related Employees, Bradfield College and Teachers in TAFE Children's Centres) Salaries and Conditions Award 2009' ('the incorporation award'). As a result of a dispute about the form of cl 47 for the incorporation award, the Full Bench resolved that cl 47 would be slightly varied and is now in the following form: 6. Further Employee Related Reform Measures and Cost Savings 6.1 In order to fund the salary increases provided under this award, including the salary increases for Bradfield College and TAFE Children's Centres, the parties have committed to the identification and implementation of further employee related reform measures and cost savings to improve operational efficiency and competitiveness. 6.2 The parties agree to consider a range of initiatives, including direct teaching hours of work of TAFE teachers and time credit hours to fund the salary increases beyond 2.5% each year to the extent not already achieved by the employee related reform measures and cost savings already agreed and implemented by the parties. 6.3 Should the parties not identify the necessary employee related reform measures and cost savings or should any dispute arise during the process, the parties acknowledge and commit to take all necessary steps so that the Industrial Relations Commission shall arbitrate on and determine the employee related cost savings to fund the salary increases under this award. 10 The amended form of cl 47 neither alters the intention nor effect of the original provision, nor alters the relevance of the origins of the provision for its operation. 11 Clause 47 of the incorporation award makes it clear by its title and provisions that whilst some employee related reform measures were agreed as a precursor to the making of the award some other remain in dispute in these proceedings. The agreed reforms included matters relating to the excess teaching hourly rate, the operation of time credit provisions (and changes to the band width), appeals to GREAT and alterations to provisions concerning sick leave. 12 On 24 July 2009, the Director General filed an amended application to vary the Award. The application seeks, inter alia, an increase in direct teaching hours to fund the salary increases in excess of 2.5 per cent. The application was listed for hearing before a Full Bench commencing Monday 14 September 2009. The Federation is opposed to the application. 13 Notwithstanding that the application was listed for arbitration, as mentioned above, Walton J continued efforts to resolve the matter by conciliation. In that process his Honour had reached the point by 3 August 2009 where he was actively countenancing issuing a recommendation with a view to resolving the matter. On 3 August the Vice-President's Associate was advised by letter from the Crown Solicitor's Office of past and planned industrial action by members of the Federation at a number of TAFE campuses in the State. 14 After hearing the parties the Full Bench issued a statement to the effect that a planned conciliation conference before the Vice-President on 5 August was vacated. That conference had been convened to assist the Vice-President in finalising the terms of a recommendation. Secondly, the Full Bench issued a direction that a stop work meeting of TAFE teachers planned to occur on Tuesday, 11 August 2009 was not to occur. Thirdly, that the Full Bench would reconvene after 11 August to hear an explanation of the position of the parties. The Full Bench indicated that in the event that further industrial action was likely the recommendation foreshadowed by the Vice-President would not issue. 15 On 13 August 2009 the President's Associate was advised by the Crown Solicitor's Office that stop work meetings of TAFE teachers were convened by the Federation on 11 August contrary to the Commission's direction. Further that the Federation had placed on its website a report dated 11 August 2009 that TAFE teachers at the stop work meetings voted to take further industrial action 'if necessary' including a possible 24 hour strike in the week commencing 31 August 2009. A request was made to have the matter relisted before the Full Bench at the earliest opportunity. In oral submissions today, Mr Crawshaw SC for the Federation, advised that the decision as to whether or not further industrial action should be taken would be made by the Executive of the Federation. 16 The situation now prevailing is remarkable by reference to any acceptable measure of industrial behaviour. The members of the Federation are in receipt of substantial salary increases over a three year period, which were sustained, in substantial part, by the provisions of cl 47 of the Award, which permitted the Department to pursue further cost savings by means of an agreement reached out of a working party or conciliation or by means of arbitration. That arrangement was reached as a result of the acceptance of a Recommendation by the Commission. Any industrial action now taken could only be viewed as an attempt to pressure the Department into desisting from taking the very steps which the Federation has agreed it may take. The inappropriateness of that position is aggravated by the fact that the Department acted in accordance with the parties' acceptance of the Commission's Recommendation and the terms of an Award. In short, the Department had a right to bring the application which it brings in these proceedings. 17 The position is all the more remarkable when one considers that any prospective industrial action would occur in the face of an ongoing conciliation proceedings before the Commission (where the Federation resists issuing of a certificate of attempted conciliation) and a scheduled arbitration of the matters in dispute (falling squarely within cl 47) of which the Federation is also an active participant. 18 We have recalled all of those matters in such detail, as it appears to us incomprehensible that the Executive of the Federation would countenance industrial action in this context. This is not to say that the Federation's Executive may not have strong views about the right to take industrial action. However, we could not envisage that the Federation would wish to embrace industrial action when the action was at least against the spirit of the earlier agreement that it had entered into and where it wishes to be heard in proceedings brought in conformity with that agreement. 19 These are very serious matters about which we consider the Executive of the Federation, which endorsed the original acceptance of the Commission's Recommendation, should be called upon to express a clear view. We consider that step should be taken in the light of the Direction already made, without the Commission exercising, at this stage, any other powers under the Act. Our expectation would be that the Federation would desist from industrial action and resume the conciliation process involving, if appropriate, the making of any Recommendation by the Commission. Those Recommendations, if made, would plainly be given as the final act in conciliation prior to an arbitration, if arbitration was then necessary. 20 In all those circumstances, we direct that the Executive of the Federation meet within seven days to consider this Statement and our Direction of 4 August 2009. The determination of the Executive in that respect should be communicated to the Full Bench by 25 August 2009 by means of correspondence under the hand of the Secretary of the Federation.

21 The Full Bench will sit at 2.00 pm on 25 August 2009 to consider the Federation's response. In the event that a positive response is received in the above communication the parties should expect that the conciliation proceedings before Walton J will resume forthwith. A negative response will result in the Full Bench further listing the matter in order to consider any application made by the parties, including the application by the Department today for the issuing of a certificate under s 135 of the Act. ________________________

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