Industrial Relations Commission Decision 244/1988 [1988] AIRC 1074 | Case summary

Australian Industrial Relations Commission|1988-03-25

The application of TAA then continued and upon its completion and before considering either of the other applications, the Registrar announced on 2 October 1986:

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(8)(1928-29) [1929] HCA 11; 41 CLR 569 (9)(1983) [1983] HCA 19; (10)(1986) ; (11)Print F7978

"I am . . . prepared to say now that I would not refuse registration on the basis of grounds of objection which have been put to me so far. As Mr Hinkley for ATU has said there are some still to be dealt with. I

cannot, at this stage of course give detailed reasons for those conclusions, but I will as soon as possible, and I propose therefore to proceed with the ITF application . . ."

Much of the material already adduced at the lengthy TAA hearing was used as part of the application by ITF which commenced on 7 October 1986 and concluded on 22 October 1986 when the Registrar stated:

"I can indicate now that I will not be refusing registration but I will not say anything further than that and I will give a written decision as quickly as I can."

A like procedure was adopted with respect to the ATU application when the Registrar announced on 5 November 1986 that registration would follow subject to rule changes to comply with certain conditions.

Three written decisions were handed down on 17 December 1986. The decision relating to TAA is the substantial decision in that it contains the overriding industrial philosophy and jurisprudence which constrained the Registrar to grant the applications of all three associations. With respect to ATU, the Registrar referred to the withdrawal of all objections relating to that applicant and stated that as a consequence ATU would be registered subject to the satisfactory completion of proceedings under section 134 of the Act.

It is beyond question that the determination of the three applications involved the exercise of the Registrar's discretion. The principles governing the approach to be adopted by an appellate tribunal when considering any determination resulting from such an exercise are clear and we find it unnecessary to traverse the authorities which discuss those principles as they have been adumbrated in this Commission and in courts of law. However we must repeat that there was a singularity involved in the discretionary exercise in the present cases. This was no ordinary circumstance of the Registrar deciding

whether or not to grant an application for registration. Such applications are ordinarily considered against the provisions of the Act and regulations, particularly section 142 and regulation 119, and in light of well-developed principles which have evolved from decisions in cases decided in this Commission in the old Court of Conciliation and Arbitration and in the High Court of Australia. In the present instance however legislative provisions such as section 142 could play little or no part in the proceedings before the Registrar except perhaps by analogy. Any application of the concepts contained in section 142 of the Act was circuitous and of limited worth. It could be maintained that unregistered members of the TAA could belong to the unregistered ATU and ITF just as conveniently as those of ATU and ITF could belong to TAA.

The choices given to the Registrar were twofold. First he might have refused to grant the applications of any of the applicants or of any one or other of them presumably upon the ground that State unions had, before and since the State School Teachers' case, developed to an extent which made registration in the Federal field unnecessary and to that extent the concept of "conveniently belonging" might have been of limited application. On the other hand the Registrar had the choice of registering one or other or two or all the applications in the context of what was adequate and appropriate in this new industry.

However a choice involves a preferential determination between given proposals which in turn requires the adoption of a neutral stance until all options have been introduced and considered. In the present situation, as we have already noted, the Registrar, after hearing the TAA application indicated his intention to register TAA without having considered the position of ITF and ATU. This decision to register TAA was particularly critical because eligibility for membership of that association covered the government and non-government sectors of the schoolteaching industry. Thus approval was given to the composite applicant before any consideration had been given to the applicants which confined their eligibility rule to the government sector on the one hand and to the non-government sector on the other hand.

It may be that the Registrar took this course because of his view of regulation 117. But that regulation, which we have already cited, does not lay down any inflexible procedure. In its own terms it prescribes the order in which applications for registration should be dealt with "as far as practicable". And in any event the prescription of that sequence does not involve the actual determination of one application before a like application is considered. As we say, it is not clear whether the Registrar adopted the course which he took because he felt himself constrained so to do by regulation 117. But that is not to the point. We have already expressed our opinion that there was no mandatory requirement for the Registrar to register all applicants. That being so, we are clearly of the view that, in the unique situation in which he was acting and in light of his knowledge of the existence of the three applications, no decision should have been given or indicated until the material in all three had been adduced for the Registrar's consideration.

In support of these appeals much time was taken up with submissions relating to various parts of the decisions of the Registrar and more particularly the major decision relating to the application of TAA. In many respects it was contended that he had erred in principle and in his approach to the facts. However, it is unnecessary for us to consider those submissions in light of our conclusion that the applications should all have been heard before a decision was made in any particular application. It follows from this conclusion that we must ourselves determine the outcome of the three applications by an exercise of our own discretion. This has required a consideration of the material adduced before the Registrar. We do not propose, however, to canvass that material in detail other than to refer to what we consider to be the most significant factors. Nor do we propose to refer in depth to the arguments put by counsel and advocates for the parties and interveners.

We turn now to consider, first, the position of ATU and ITF: the applicants whose eligibility is confined to the government and independent sectors respectively of the schoolteaching industry.

A submission put on behalf of the independent schools that ITF should not have been registered was based, primarily, upon the ground that State unions are active in, and cover the field in the non-government sector. A survey of the independent sector shows that State unions are indeed comprehensive in their coverage and active in furthering the interests of their members.

In New South Wales, the Assistant Masters Association was formed in 1954 and registered in 1958. In 1960 it became the Assistant Masters and Mistresses Association and changed its name again in 1973 to become the New South Wales Teachers Federation. Awards in that State cover all aspects of private school teaching.

In Victoria awards covering independent schoolteachers were first introduced in 1946. The Assistant Masters Association and the Assistant Mistresses Association were formed in the 1920s and amalgamated in 1975 to become the Victorian Association of Teachers in Independent Schools. The Staff Association Catholic Secondary Schools was formed in 1974 which together with the Victorian Catholic Primary Staff Association covers the field in the sector of Catholic systemic schools.

In Queensland, the Queensland Association of Teachers in Independent

Schools, Union of Employees covers all areas in independent schools and is party to the State Teachers Award - Non-Government Schools. The first award covering teachers in the non-government sector was made in 1920.

In South Australia teachers in government and non-government schools were covered until 1984 by the South Australian Institute of Teachers. In 1984 the Association of Teachers in Independent Schools was formed in circumstances to be discussed in a later part of this decision, and registered in 1985. It

is party to the State Teachers (Non-Government Schools) Award.

In Western Australia teachers in all non-government Schools are eligible to be members of the Independent Schools Salaried Officers Association which is party to an award covering all such schools.

In Tasmania there exists the Independent Teachers Association and the Tasmanian Catholic Education Employees Association but there is only one State award or registered agreement. This prescription is limited to teachers in Catholic schools.

No case was mounted by any State union of independent teachers against the registration of ITF before the Registrar nor on appeal. Indeed unions in all States which cover teachers in non-government schools are affiliates of the ITF and in numerous instances have given active support and sponsorship to its registration. Marilyn Joy Forde who is the Executive Officer of the Victorian Association of Teachers in Independent Schools deposed that as the Federal jurisdiction "is now opening up to teachers, it is essential that we seek to maximise our ability to protect and advance the interests of our members in this forum . . ." The force of this statement is to be tested in the context of Federal union coverage for teachers in government schools. This presence must give strong support for a countervailing union, in that industrial area, which can also attend to the requirement of teachers in independent schools.

Some employers, for example Paul Anthony Gain, who is Executive Secretary of the Catholic Education Commission of Western Australia, expressed anxiety that "the introduction of a Federal award would disturb the pattern of wages and conditions which has evolved in Western Australia". This may be so; but the force of such a statement is more appropriately to be considered in the context of whether an award should be prescribed in some particular sector. It does not weigh so heavily upon the issue of whether ITF should become an organization registered in the Federal jurisdiction.

In all the circumstances we reject the submission put forward on behalf of the independent schools.

A submission was put on behalf of eight Victorian independent schools that the rule of ITF should exclude teachers employed in those schools. The exclusion was sought so as to follow a like prescription in the Victorian award covering independent schools. We reject this submission. Its content is more appropriate for consideration in proceedings pursuant to section 41(1)(d) of the Act. It pertains more to award regulation than to the basic question of registration.

It is now necessary to consider the position of the ATU in the context of what associations should be recognised as organizations of employees in the new field of Federal industry. No application for leave to appeal having been lodged against the decision of the Registrar to register the ATU, it is not a matter for us to determine the merits of his decision so to do. The ATU must be accepted as a registered organization covering the schoolteaching industry

in the government sector. It is necessary however to consider the position of the ATU in the industry. Its capacity to influence the industry and the extent to which it may be seen to be representative of the teaching staff which it is eligible to cover are crucial to the question of what organizations should be introduced into the field.

An examination of the history of unionism in the schoolteaching industry reveals that the Australian Teachers Federation (ATF) and its predecessors have played a dominant role. ATU is the Federal affiliate of that Federation. Also affiliated to the ATF are the unions in the States of New South Wales,

Queensland, South Australia, Tasmania and the Territories which alone in those States cover teachers in government schools. In Victoria, where four unions operate in the government sector, three are affiliates of the ATF. The three Victorian unions are the Victorian Teachers Union, the Technical Teachers Union of Victoria and the Victorian Secondary Teachers Association. The unions

which cover the sector in the other States are, the New South Wales Teachers Federation, the Queensland Teachers Union, the South Australian Institute of Teachers, the State Schools Teachers Union of Western Australia Inc and the Tasmanian Teachers Federation. In the Australian Capital Territory and the Northern Territory unions which are Federally registered act in association with the ATF. Representation in the ATF extends to the Commonwealth Schools Commission, the Territory Education Commissioners and the Council of Technical and Further Education (TAFE).

The New South Wales Teachers Federation (NSWTF) was registered in the State in 1918. In 1921 a Federally representative association known as the Australian School Teachers Federation (ASTF) was formed with power to make resolutions, including those going to working conditions, which were conveyed to State Education Departments. Following legislation in New South Wales in 1921 withdrawing the NSWTF from the State Industrial system, consideration was given to the Federal registration of the ASTF. However, the NSWTF decided to register Federally, inviting teachers in Victoria, South Australia and Tasmania, but not their unions, to become members. We have already made reference to the new association which became known as the Federated State School Teachers Association of Australia (FSSTAA) which was Federally registered in 1924 and to the waning of Federal activity following the State School Teachers' case in the High Court of Australia. In 1937, after amendments to the constitution of FSSTAA, the ATF was formed with emphasis upon educational policies rather than conditions of employment. In circumstances which we find it unnecessary to canvass, the affiliation of ATF fell away until the State School Teachers' case was overruled by the High

Court in the CYSS case. With the opening up of schoolteaching as a Federal industrial field, the activity of ATF culminated with the application by the ATU for registration in February 1984. Thus ATU has as affiliates all the State government school unions but one; it can also claim a direct ancestry from the beginning of Federal unionism in schoolteaching.

Before turning to consider the position of TAA, it should be observed that ITF and ATU are organizations which are appropriate in the general schoolteaching industry. We have already traversed the submission that ITF should not be registered on the ground that the existing State systems are sufficient to cover the non-government sector of the industry. Apart from that submission nothing was put forward in opposition to the registration of ITF. Nor, as we have already pointed out, was any opposition raised about the registration of ATU. From the rejection of the submission of the independent schools and in the absence of an appeal against ATU it follows that those organizations qualify or have qualified for registration in the industry. But, standing away from that factual situation, we are of the view that the subtantial merits of each case justify the presence of those two organizations whether or not TAA is introduced as a third organization in the industry. That conclusion stems from the factors which we have already canvassed.

With the registration of ITF and ATU schoolteaching is covered, Federally, in both sectors of the schoolteaching industry. There is nothing in the rules of either organization which in any way restricts or disqualifies teachers from membership provided they are engaged in the profession of schoolteaching in the independent or government sectors respectively. But all that is not to say that a third organization should not also obtain registration if relevant circumstances indicate a need for such a course. It must also be emphasised that no question arises of whether in some way TAA is obliged, having regard to the recognition of ITF and TAA, to give any additional justification for its application. It must be considered as an equal in the field of applicants. All the features of the TAA case which are common to the cases of either ITF and ATU must be given due consideration. So too must any particular feature which is maintained as being peculiar to the TAA case.

The origins of TAA are confined to the State of Victoria where unlike other States, unions in the government school area have proliferated. It appears that the field was covered at first by a single union known as the Victorian Teachers Union (VTU). Teachers in primary, secondary and technical

education were eligible to be members of VTU, but dissension arose because primary schoolteachers, who formed the majority of teachers, were the major office-holders in the union and secondary schoolteachers felt that their own interests were being neglected. It was in those circumstances that the Victorian Secondary Teachers Association (VSTA) was formed. The Technical Teachers Union of Victoria was the other breakaway union. Within VSTA further dissension was generated by a number of circumstances which combined to lead to the formation, in 1976, of an association known as the Victorian Association of Teachers (VAT) which became the Victorian Associated Teachers Federation (VATF) in 1985. The circumstances which led to this further breakaway included discontent with union policies over balloting for admission to tertiary education and disagreement with what was considered to be industrial aggression on the part of VSTA. The dissentients were also opposed to compulsory unionism, which they considered to be the policy of VSTA. In 1978 VAT obtained accreditation to the Victorian Teachers Tribunal and presented cases relating to conditions of employment for teachers. The other Victorian unions, notably the VSTA and TTUV maintained opposition to the Victorian tribunal upon the grounds that its functions were conflicting because they included the power of discipline as well as the general function of prescribing remuneration and conditions of employment. In 1981 the Victorian Teachers Tribunal was abolished and at all material times thereafter

the terms and conditions of employment of government schoolteachers in

Victoria, including their remuneration, have been determined by direct negotiation with the Victorian government of the day. VATF has been excluded from those negotiations by successive labor and non-labor governments under threat of boycott by VTU, VSTA and TTUV.

TAA was formed as an association, under sponsorship of VATF, to apply for Federal registration.

The foregoing is a somewhat potted history of the origins of TAA

compared with the prolonged case on the matter which was put before the Registrar and the somewhat condensed, but nevertheless lengthy, presentation on appeal. What we have outlined is sufficient, however, to show that the origins of TAA have been generated by the industrial dissension which took place in Victoria. This is not to say, however, that TAA for that reason should not be considered as a commendable candidate for registration as a Federal organization, covering as it does membership of teachers in government and non-government schools.

Confidence was expressed by witnesses in the hearing before the Registrar that TAA would service the two sectors equally well. Those witnesses expressed anxiety that ATU and ITF, in contrast to what was expected of TAA, might be given to industrial militancy. As one witness put it, TAA would seek to adopt a "professional approach in pursuance of its policies and would be concerned with education in total".

In support of its case for registration, TAA contended that the objects of the Act encourage the freedom of persons to associate and come forward for the registration of their association in accordance with its provisions. In his well-known decision in the AMP Staff Association case Piper CJ pointed out that:

"The Commonwealth Conciliation and Arbitration Act assumes the right of freedom of association and gives an association the right to obtain the legal status of an organization provided it complies with the conditions prescribed in the Act."(12)

So the freedom of association is dependent upon compliance with the prescribed conditions which include, of course, a consideration of any grounds of objection to the registration of an association. It is one of the objects of the Act that the organization of representative bodies of employees and their registration are to be encouraged; but that is not to say that discretion

should be eased nor that a disciplined approach should not be adopted in the matter of the registration of groups in association. The overriding object of the Act is the prevention and settlement of industrial disputes and such disputes may be, and have become, increasingly prevalent between registered organizations of employees on issues of demarcation. Section 142A has been introduced to cope with conflict between organizations of employees already registered, as to which of them may be given the right to represent groups of employees eligible to be members of the organizations in dispute. The section gives the Commission a means of providing a solution where overlapping eligibility exists for membership of competing organizations. The means for dealing with the possibility of conflict is given by section 142. It is a section which postulates the existence of an already existing organization or organizations in the field of industrial activity sought by the applicant for registration. The importance of the Registrar's function under section 142 has been considered in decisions of the High Court and of this Commission including the Court of Conciliation and Arbitration. In no case has it been

_______________________________________________________________________________ (12)(1944) 53 CAR 836 at 843

concluded that the possibility of conflict should be unleashed save for good and sound reasons. Indeed the cases suggest that inherent to good and sound reason there should be discernible limiting factors to the possibility of conflict. A full reading of the decision in the AMP Society Staff Association case itself bears that out. See also the MOA case(13) and R. v Watson; Ex parte Australian Workers' Union.(14) In this virgin field of Federal industry so much greater is the need to adopt the posture of Janus and look forward whilst at the same time looking back at the lessons of the past.

Any determination of whether TAA should be Federally registered entails a consideration of the fact that it is a composite union granting eligibility to teachers in both sectors of the teaching industry. Much was made of this feature upon the ground that not only did TAA present a choice in each of the two sectors to join TAA in preference to ITF and ATU, but that it also presented the option of joining a composite union pursuing the industrial well-being of the totality of teachers.

We propose to consider first the desirability of having a union to which teachers from either sector may opt to join in preference to membership of the union representing the particular sector in which the teacher is employed.

We have already traced the history of unionism in the non-government sector of teaching which shows that, with the exception of South Australia, teachers in that sector have always remained separate in their grouping from their counterparts in government schools. By corollary, unions covering teachers in the government sector have, for many years, been a part of the State industrial scene without any trace of activity towards common or composite unionism covering the two sectors. The early history of Federal unionism leading up to the State School Teachers, case and formally concluding with the demise of the VSSTAA and the birth of the ATF has already been mentioned. At no time in the course of that Federal activity does there appear to have been any move or attempt to widen the Federal eligibility to include teachers in the private sector of schoolteaching, albeit that in some States teachers in independent schools were unionised before the State School Teachers' case was decided.

What then of the contention that the presence of TAA with its composite structure in the Federal industry of schoolteaching provides the opportunity of considering "education in the total" as one witness described it? Its attraction was that teachers from both sectors could join together in dealing with common problems. Perhaps it is not doing an injustice to this contention to say that it expresses commendable ideals but that in practical terms it invokes caution. As we have already noted, the history of State unionism, with the exception of South Australia, has developed with a separation between the public and private sector. History shows that in South Australia, a single union existed, which government and non-government teachers were eligible to join. This union was the South Australian Institute of Teachers (SAIT). However, it appears that in the 1950s non-government teachers could not achieve full membership of SAIT; they were restricted to associate membership. Later when full membership became available, the non-government group chose, in 1972, to set up its own association within SAIT. It appears from the evidence of a former President of this non-government association that

"relations between the non-government teachers and SAIT became strained due to changing State-aid policies regarding the support by State and Federal Governments for non-government schools . . . Things came to a head early in 1984 with the support of SAIT for the Australian Teachers

Federation's campaign for a moratorium on funding by governments for non-government schools". _______________________________________________________________________________

(13) [1944] HCA 7; 68 CLR 628 at 635 per Latham CJ and at 640 per Starke J (14) [1972] HCA 72; (1972-73) 128 CLR 77 at 79

We should add that, when the widespread affiliation with the ATF is considered, the issues raised over the funding of non-government schools would not appear to be confined to the State of South Australia. Indeed there was evidence before the Registrar that unions in the State of New South Wales, representing teachers in government schools, have been consistent in their opposition to government funding in the non-government sector.

The formation of TAA was unquestionably generated by the dissension

between VATF and the other teacher unions in the government sector in the State of Victoria. Also there is some justification for inferring that the extension of its constitution to include teachers in the non-government sector has stemmed from natural development or historical consequence. In this context it is worthwhile referring to the evidence of TAA membership in September 1986 during the time of the hearing of its application for registration. The number of members employed in government schools was:

Victoria 811 New South Wales 32 South Australia 2 Queensland 50 ACT 11

The number of TAA members employed in the non-government area was:

Victoria 98 New South Wales 72 South Australia 22 Queensland 23 ACT 2 Northern Territory 1

Against these figures is the fact that the number of teachers in both sectors runs into many thousands.

It was necessary in our view for the Registrar to place upon a firm national footing the administrative function which he was called upon to fulfil in this unique situation. The origins and development of ITF and ATU demonstrate their qualification in this respect. On the other hand TAA appears to have come into being by way of reaction to the faction-fighting in one State. Indeed there is much to be said for the comment that the perceived origins of TAA are to be found in the very situation which the registration of competing unions is calculated to engender. When the potential for competition is considered in the non-government as well as the government sector, along with the shortcomings associated with the furtherance of the industrial interests of non-government and government teachers inter se, we are constrained to conclude that the registration of TAA should not be granted or at best that its application is premature and must depend upon circumstances which may develop at some future time but which form no part of the scene at the threshold point of a new industry. Although the following passage in the decision of a Full Bench of this Commission was made in the context of an appeal from a member refusing to refrain under section 41(1)(d) of the Act, it is germane to our present conclusion. In quashing the decision of a Commission member that appropriate union coverage should extend to both the Federated

Clerks Union of Australia and The Australian Insurance Employees' Union the Full Bench considered that:

". . . he erred in that he did not give sufficient weight to:

(a) the primary objective of preventing the evils which arise

from competing unions, which the Act envisages and this Commission has sought to pursue;

(b) whether the Insurance Employees' Union's rights of intrusion were so compulsively in the interest of the employees they seek to enrol and cover' that the real prospect of competition, disharmony, and disaffection between the two unions could be accepted as a necessary evil and hopefully one of short duration' (See Builders Labourers Case ((1972) 144 CAR 568 at 573), and Peko Mines

(c) the absence of grass roots support in the industry for the Insurance Employees' Union, the union itself admitting the

We have given consideration to other factors relied upon on behalf of TAA which include allegations directed against ATU of possible union militancy, compulsory unionism and contributions to political parties. Whether or not such matters might be apposite for consideration on some other occasion, they do not carry sufficient weight to disturb our conclusion in the present case.

It follows from our view of all the circumstances that we will quash the decision of the Registrar of 17 December 1986 by which he decided to register TAA as an organization of employees pursuant to the provisions of the Act.

We must now turn to the remaining major part of these appeals.

The eligibility rules of TAA and ITF include the right to represent the industrial interests under the Act of principals employed in non-government schools. Having regard to our conclusions relating to the decision of the Registrar with respect to TAA, only the rule of ITF requires consideration.

All appellants presented the same case, namely that ITF, having regard, essentially, to its coverage of teachers generally, cannot adequately represent the industrial interests of principals who are in all matters as between teachers and themselves, including matters of discipline, supervision and the right to hire and fire, beholden to, and represent the interests of, the employer.

We do not propose to canvass the appellants' case nor what was put by way of reply on behalf of ITF. Such a course would result in a long decision becoming even longer and would serve no useful purpose once it is stated, as we now do, that we have given consideration to all submissions. We do propose, however, to refer specifically to some of the submissions put forward on

behalf of ITF in justification of retaining the coverage of school principals in its eligibility rule.

But first we must consider our own appellate function upon this aspect of the appeals. Much was put to us by way of criticism of the reasoning of the Registrar which led to his decision to include eligibility to enrol principals _______________________________________________________________________________

in the rules of TAA and ITF. We would have been inclined to accept much of this criticism. But in determining whether we should exercise our own discretion upon the present aspect it must be borne in mind that upon the overriding issue relating to registration we have decided that the Registrar should have given a broad consideration of all three applications rather than indicating his conclusions seriatim. This being so we consider that it would not be wise to determine our appellate function on the present aspect less broadly than upon the issue of registration. It follows that we are obliged to consider the cases relating to principals in non-government schools (systemic and independent) and come to our own conclusions thereon. Systemic schools are those Catholic schools which are organised and controlled and funded through the church itself and delegated bodies. The independent schools are the private schools which are free from centralised control even though they may be administered by a council acting in conjunction with a church.

The overriding issue to be decided is whether ITF, organised as it is for schoolteachers generally, can properly represent the industrial interests of principals to an extent that the identity of such persons as a group and their independence in the industrial context will be recognised and preserved.

The inclusion of principals in the eligibility rule of ITF was opposed by principals of Catholic schools and by the Association of Heads of Independent Schools, a body representing the principals of some 220 independent and other Catholic systemic schools in all Australian States and the Australian Capital Territory. Also contesting the inclusion of principals were the Catholic Education Offices of all States and the Australian Capital Territory and various boards and associations of independent schools in New South Wales, Victoria, South Australia and Western Australia. Eight independent schools in Victoria were separately represented and opposed the inclusion.

In support of its case ITF called two witnesses before the Registrar. Each of the witnesses was a principal of a Catholic systemic primary school. Mr Palmer considered that ITF would be more likely than an association consisting only of principals to dispute the position of an employer on industrial matters. He deposed to the interchange of membership of principals in the Catholic primary schools of Victoria between the Catholic teachers union, the Catholic principals union and the ITF. In cross-examination,

however, he conceded that there was a "fundamential distinction" in dismissal cases between the role of the principal and that of any other teacher. The second witness, Mr Graham, had become a member of the Independent Teachers Association of New South Wales because (inter alia) that union had greater resources and would be more actively prepared to project the industrial interests of teachers than the Association of Principals employed in Catholic schools. It seems from his evidence that Mr Graham accepted the distinction conceded by Mr Palmer but considered the consequences to be insignificant.

Further evidence was given before the Registrar about the role of the principal but it is necessary only to refer to the evidence of one witness from each of the two divisions of the non-government area: the Independent schools and the Catholic systemic schools. To refer to the evidence of more than one witness in each area would be no more than repetition in light of the general agreement upon the fundamental features relating to the position of principals in the union context. The evidence of these witnesses was uncontradicted in the sense that neither is a principal of a primary school, nor was either witness cross-examined.

Mr Nigel Creese was the Chairman of the Association of Heads of Independent Schools and the Principal of the Melbourne Church of England Grammar School. We set out the evidence of Mr Creese insofar as it relates to the position of a principal of an independent school:

". . . In a general sense the Head is responsible for carrying out the policies, principles and aims of the school and this often means making

sure that the teachers do likewise. In most schools Heads take part in the initiation and development of policy, in association with the school's council. In particular, the Head is responsible for:

(a) the appointment, management and termination of staff;

(b) the enrolment, suspension and expulsion of pupils;

(d) liaison with former pupils and groups of supporters of the school;

(e) dealing with the community on behalf of the school;

(f) administering the financial and fund-raising aspects connected with the School;

(g) dealing with parents of pupils at the school; and

(h) advising the school governing body on required staffing levels.

The Heads of independent schools play an important role in the wider community as representatives of the school on outside bodies. The Heads of independent schools commonly represent their school on councils and committees of associations of independent schools which exist in each State. These associations of course are involved in various activities including the representation of employers in award and industrial relations matters.

In my view the role of a Head in an independent school is a unique one. The closest analogy which can be drawn is the position of the chief executive of a company or business. The Head has ultimate responsibility for the affairs of the school and is the primary representative of the school in all day to day activities of the school.

The relationship between a Head of an independent school and the school council is one of complete trust on both sides. In my view award coverage or trade union involvement with this relationship is completely inappropriate and contrary to the best interests of the schools and the Heads themselves.

In addition I believe that it is especially undesirable that a union with coverage of teachers also has coverage of Heads, for the following reasons:

(a) Heads are responsible for the recruitment and selection of

staff and for all disciplinary matter affecting teachers;

(b) Heads frequently act as the employer's representative in dealing with teachers' unions either directly or through participation in various associations of independent schools and similar bodies;

(c) The position of Heads could not be adequately represented or fairly treated in such a union. Heads would be outnumbered

Mr Michael Adams had been a school principal for some eight and a half years and was the Principal of St John's Girls High School at Auburn in the State of New South Wales. It is a Catholic systemic school operated by the Catholic Education Office of the Archdiocese of Sydney. At the time of his deposition Mr Adams was also the Secretary and Treasurer of the Association of Principals employed in Catholic schools in New South Wales. That part of his evidence which relates to the present issue was as follows:

"Owing to the nature of the position of a principal and the responsibility he bears for overall supervision, direction, control and management of the school (including questions of discipline) very real difficulties of representation arise in circumstances of a conflict between a principal and one of his teachers. ITA has resolved this conflict in a manner adverse to the interests of principals by expressly adopting a policy to the effect that principals would not be represented in favour of teachers but that teachers would be represented against principals.

Principals of Catholic Schools, within my experience and knowledge both of systemic and non-systemic Catholic Schools and State Schools, have greater autonomy and responsibility in relation to matters of finance and religious education than their counterparts in State Schools. They wield more direct authority and therefore would appear to be a very real analogous (sic) between a Catholic School principal and his or her staff and that of an employer and employee.

Within Systemic Catholic Schools principals are subject to the direction of the Catholic Education Office whereas principals of non-systemic Catholic Schools are independent of any direct control. However, principals of Catholic Schools generally have direct authority to employ staff.

In respect to the dismissal of staff, a principal within a systemic Catholic School is given full authority to recommend any dismissal to the Catholic Education Office. A principal of a non-systemic Catholic School has unfettered power to dismiss."

Upon the evidence of these two witnesses one may ask rhetorically how can a union cope (to use a neutral word) with the interests of teachers as well as of principals in all circumstances. It seems that for some years the Independent Teachers Association of New South Wales have had difficulty in finding a satisfactory answer to the question. In the official publication of the Association of February 1982 there appears an article headed School Principals and the ITA written by the Secretary of the Association. After

pointing out that many members of the ITA consider that there is a clash of interests between members and principals the article states:

"Hence, an ITA meeting at a school, which wishes to consider matters relating to conditions of employment, such internal things as timetabling, playground rosters, lack of equipment or staff facilities, is often constrained (to say the least) by having a member, who happens also to be the principal and employer, present.

Further, many members have argued that in specific cases, principals are not bona fide members of the union, having joined only to

keep an inside eye on what is going on and in an attempt to modify policy decisions and to keep their own staff members from raising matters against them in ITA meetings."

After further discussion which points out that certain principals in the Catholic systemic system remained covered by the ITA rule the article continues:

"However, because of a number of problems that have arisen over the years with regard to principals, the ITA has adopted the following policy which remains current:

A member who is a principal or employer agent, is entitled to all the same benefits of ITA membership as an ordinary member, except that if a dispute arises between an ordinary member and the principal member,

or advice is sought by a principal member in his/her employer capacity, the services, support and advice of the ITA will not be given to the principal member. In such a situation, the principal member is entitled to receive advice and assistance from the employer's advisors or representatives."

In the following year an organiser of ITA wrote in the Union paper of the dismissal situation involving the dismissal of teachers and how "many independent school principals think they can dismiss a teacher at will". The article calls for ordinary staff meetings at schools to be run efficiently and concludes:

"ITA meetings at school need to be run on the same lines and need to be fairly frequent. Principals should never attend Association meetings. Teachers must be able to discuss their work openly and equally with colleagues.

We must demand that before any teacher is dismissed or forced to resign, due process and just procedures have been followed. I do not

As recently as 3 June 1986 the New South Wales Independent Teachers Federation published a circular letter to members in the Hunter Valley Branch complaining of an allegedly unfair dismissal of a teacher from St Mary's High School in Maitland. The letter stated that it is also disturbing that teachers who have attempted to show solidarity with a dismissed colleague have reported harassment and intimidation from principals and Diocesan employers.

We do not canvass the merits of these publications. The point simply is that allegiances are readily seen to be divided in the teacher and principal

relationship. Moreover, the last publication relates to teachers in systemic Catholic schools. It can be seen from the evidence of Mr Creese and Mr Adams that the position of the principal in the independent school is more distanced from, and more superior to, the teacher than is the case in the systemic area.

It appears that in September 1986 the New South Wales ITA changed its policy toward principals by moving for a separate branch for principals within the Association. It also made provision in case of conflict between teachers and principals for the latter to have ITA representation as well as the teacher. The latter provision, however, would appear to cut across the situation that in the event of such conflict the principal would be the agent of the employer and that a clear conflict of interest would be engendered if

the union proposal were to be implemented. Moreover the policy changes would appear to emphasise the divergence of interest between teacher and principal. That divergence does not exist because of some particular feature which is to be confined to the State of New South Wales. The faction-fighting in the State of Victoria which led to the formation of the Victorian Affiliated Teachers Association and which generated the formation of the TAA could be so described. On the other hand, the evidence of the principal-teacher relationship is of general application. It involves a human relationship transcending State boundaries. In its decision as yet unreported, of 3 December 1987 confirming the registration of The Association of Principals Employed in Catholic schools in New South Wales, as an industrial union of employees the Industrial Commission of New South Wales in Court Session said:

"It is clear to us that, notwithstanding the rule changes made by ITA

and policy reconsideration, there are special circumstances which apply in the case of principals, who, in their relationship with the bulk of the membership of ITA, stand largely in a representative capacity and in a way which, (in the minds of those members who comprise the majority of ITA, as well as in reality,) identifies them with the employer."

"We think . . . that if the ITA were to have its councils or activities in some way conditioned by the need to cater for principals, a very real conflict of interest could, from time to time, arise."

"We note what Mr Haylen has said as to the viability of a small union. This may be a most compelling consideration in the modern day context in the general run of unions. We do not consider it to be so in relation to this somewhat exceptional and special group."

In a decision handed down on 16 December 1987 the Registrar of the Queensland Industrial Commission granted an application by the Queensland Association of Teachers in Independent Schools, Union of Employees, the effect of which was to extend the eligibility rule of that union to include (inter alia), Principals, in independent schools. The reasons for adopting this course are not clear in the Registrar's decision. We prefer, with respect, the statements relating to Principals which are contained in the decision of the Industrial Commission of New South Wales.

Mr Rothman on behalf of the ITF relied strongly on the alleged principle of freedom of association. Indeed he contended that the entitlement of persons to associate as they pleased was a fundamental premise and that there was nothing in the Act against principals being in one union with teachers, especially since the two groups follow the same vocation. We have already discussed this claim elsewhere in our decision. But it is appropriate, here, to add a few comments. The very word "freedom" implies some degree of regulation for the benefit of all. Liberty and licence would more closely

represent the situation submitted by Mr Rothman. As we have already observed, freedom of association is to be overseen in the context of the objects and other provisions of the Act. In the administration of Part VIII of the Act the concept of freedom of association must be recognised in the context of the Act as a whole; otherwise it is a mere catchcry. In support of the argument designed to elevate the concept as a principle, Mr Rothman relied upon a passage in the decision of Franki J in an appeal relating to the United

"Whilst I think it is extremely undesirable . . . that officers and men should be members of the one union, and particularly so where the union includes officers above those of substantially the lowest rank, I nevertheless feel that it should be open to members as an association seeking registration to decide how they will group themselves so as best to advance their own interests by all legal means."(16)

Insofar as this passage was intended as an authority for freedom of association as a principle divorced from the constraints which we have already canvassed, it should not in our view be followed. Moreover the question whether officers or supervisors should be or remain in an organization which also includes eligibility for the men or women they supervise must not be confined to cases where the officers or supervisors seek separate registration as a breakaway group. Such was the position in the Wool Classers case.(17) Contrary to Mr Rothman's submission the question is of equal relevance in such cases as the present where registration is sought by an association whose

eligibility rule includes both officers or supervisors and the men or women they supervise. To limit the question to the "breakaway" situation would be calculated to impose the straightjacket in a jurisdiction where flexibility should be the norm.

It was further suggested that some provision should be made in the ITF rule to cover principals so that those members who were formerly teachers, but had been appointed to the position of Principal, could retain their membership with ITF. We do not intend to be frivolous when we say that if those people wish to remain attached to ITF in some way they may do so on a social basis and without voting rights, by arrangement with ITF. However this Commission has no part to play with social matters nor with matters of sentiment.

In our view the evidence and material adduced before the Registrar, the more significant parts of which we have discussed, together with our own considerations, all indicate that ITF is not an appropriate organization to represent satisfactorily the industrial interests of principals. It has not been shown that ITF is capable of servicing and representing the industrial interests of principals and their disputes in such a way as to preserve the identity and independence of those who occupy those offices. It is not to heads of campuses within schools to whom we refer; but to heads of schools and their deputies.

It should be noted that an application for Federal registration of an association purporting to represent principals in Catholic systemic schools,

is already in the field, apparently with a membership which exceeds the membership of such persons in all the affiliates of ITF. Of course, our acknowledgment of the presence of this applicant is not put forward against ITF. But when it is remembered that the concern is with a new Federal industry it is also to be accepted that progress cannot be instant. It does not follow that the representation of certain groups in the industry must be instantly accommodated at any price.

Principals of such private institutions as business colleges, pre-schools, special schools and the like were not the subject of evidence before the Registrar. However, to make some qualification to accommodate such persons within ITF, assuming that the institutions come within the definitions

in the ITF rule, would tend to confuse where clarity is essential.

_______________________________________________________________________________

(16)(1969) 129 CAR 43 at 57 (17)(1933) 32 CAR 733

It was submitted by Mr Ginnane who appeared on behalf of eight Victorian independent schools, that the ITF rule should also be curtailed to exclude librarians and those assisting the main body of members. The submission was put in general terms without any precise enunciation of the categories of work to be included in the submission. If any other party, gave support to the claim it was but faintly put. In our view the rule of ITF should be preserved upon an industry basis so that the minimum of extraneous union activity is possible. The position of principals is exceptional and should not be the thin edge of the wedge, so to speak, for further erosion. This claim cannot be supported.

Two further matters require our determination, viz. C1382 of 1987 and C2017 of 1987. Although separate from the appeals which have been, thus far, our concern, they are sufficiently related to justify inclusion in this decision.

This is a reference from the Registrar pursuant to section 88E of the Act. It appears that before his decision to register TAA the Registrar granted leave to TAA, pursuant to section 34 of the Act, to alter its rules for the purpose of removing the grounds raised by certain objectors. At the time of the hearing of the rule change, ATU was a registered organization. A notice of objection was filed by ATU against the registraton of TAA. The notice raised issues which have already been decided in this decision together with the "conveniently belong" issue which could not be relied upon in the matters with which this decision is directly concerned, except by analogy.

At the hearing pursuant to section 134 the Registrar referred the question whether TAA should be refused registration on any of the grounds raised in the Notice of Objection and the President of the Commission duly delegated the question to this Bench which was already seised of the main appeals.

Having heard argument on the matters raised by the reference we are doubtful about the competence of raising the general matters contained in the notice, in proceedings brought pursuant to section 134, as distinct from section 139, of the Act. But in view of our decision in the main appeals in which we have decided against the registration of TAA the matters raised by the reference do not require determination. The reference will therefore be

For the purpose of accommodating an objection based upon section 142 of the Act by the Federally registered Australian Capital Territory Teachers Federation (ACTTF), TAA obtained a change to its rules, the effect of which was to exclude teachers employed in the Australian Capital Territory. This change, however, although it followed faithfully the notice of objection filed by ACTTF, was not an adequate exclusion because the rules of that organization

extend to make eligible for membership teachers employed on Christmas Island. The matter was heard by the Registrar, who, by a decision of 20 July 1987, dismissed the further objection of the ACTTF relating to the coverage of teachers on Christmas Island.

The application for leave to appeal from this decision is the matter before us: C No. 2017 of 1987.

Having regard to our decision on the appeals from the decision of the Registrar of 17 December 1986 relating to the matter raised on this appeal, C No. 2017 of 1987 does not require determination. The application will therefore be dismissed.

On the main matters and for the reasons stated the Commission will order that:

(a) the applications for leave to appeal be allowed;

(b) the appeals relating to the Teachers' Association of Australia be allowed;

(c) the decision of the Registrar of 17 December 1986 in R No. 222 of 1983 to register the Teachers' Association of Australia as an

organization of employees under the Act, be quashed;

(d) the appeals relating to the Independent Teachers Federation be allowed in part;

(e) the applicant for registration in R No. 20 of 1984, the Independent Teachers Federation, be given leave to apply to the Registrar to alter its rules so as to exclude therefrom the right

of the Independent Teachers Federation to represent the industrial interests under the Act of Principals and Deputy Principals by whatever name called;

(f) the decision of the Registrar of 17 December 1986 in R No. 20 of 1984, to the extent, aforesaid be varied.

And it is further ordered and directed that the Registrar:

(a) take all such steps and do all such things as may be required of him with respect to the aforesaid alteration;

(b) upon the aforesaid alteration being duly effected, take all such steps and do all such things as are required of him by the Act and Regulations to register the Independent Teachers Federation as an organization under the Act.

I disagree with my colleagues Mr Justice Coldham and Mr Commissioner Smith on one of the matters falling for decision - the registration of the Independent Teachers' Federation (ITF) while it has the capacity to enrol principals and deputy-principals. Otherwise, I agree with their conclusions and broadly

concur with their reasons. In supporting their decision that the Teachers' Association of Australia (TAA) not be registered, I am influenced by the small and geographically concentrated membership of TAA, which in my view renders it significantly less capable than the ATU and the ITF of representingteachers industrially. My opinion that TAA should be refused registration is reached in

spite of, rather than because of, its capacity to enrol in both the government and the private sectors.

I approach the question of ITF's capacity to enrol principals and deputy-principals by asking whether the Registrar, in dealing with that question, committed any error or errors such as would warrant the Commission's intervention on appeal. I am mindful of the words of Piper CJ in the AMP society Staff Association case, noting that he referred, not merely to appeals in general, but specifically to appeals from the Registrar:

It would, therefore, be a negation of the intention of the Act and of the power and duty conferred on the Registrar and lead to multiplicity of hearings if the Court were to permit a party who has lost before the Registrar to appeal to the Court with no other ground than the hope that the Court will exercise its discretion in a manner different from that adopted by the Registrar, even though the Registrar has not acted on any wrong fact or principle of law.(18)

The Registrar is the authority possessing, under the legislation, the primary responsibility and the relevant discretions with respect to registration. If he exercises his discretions correctly, the Commission should not overrule him.

My colleagues, I believe, take the view that the totality of the Registrar's decisions is tainted by his having announced his intention with respect to each application before hearing the next. In their opinion (with which I agree), the Registrar should have heard all of the matters before him relevant to the registration of teachers' unions and should have taken all of the material into account before announcing his decisions. His failure to do this, it is suggested, leave this Full Bench free to substitute its own discretionary decisions for the Registrar's. In my opinion, however, we should have regard to the policy underlying the principles summarized by Piper CJ.

Did the error of dealing with the applications sequentially impinge upon the Registrar's decision about the enrolment of principals? If so, that decision ought to be set aside and the Full Bench should reconsider the matter de novo. If not, the policy that appeals do not succeed merely because the appellate tribunal would exercise a discretion in a different way ought to be respected. It is not an arbitrary or a capricious policy. Rather - as Piper CJ observed - it avoids the duplication of hearings; and, in the long term, it is to the advantage of disputants and the public. Moreover, the Registrar is entitled to expect that, if he deals carefully with a matter and avoids errors, his decision will be accepted.

There is no ground whatever for thinking that the error of dealing with matters seriatim affected or could have affected the Registrar's decision about the ITF's capacity to enrol principals. In this respect, the matter differs materially from the issue of TAA's registration. Had the Registrar dealt with the various applications together, he might have considered more fully the problems of having rival registered unions and in that context he could well have refused the TAA's application. But the issues involved in the enrolment of principals in the ITF were unrelated to the competition between the rival applicants for registration. Accordingly, I consider that the appeals against ITF's registration, insofar as they relate to the enrolment of principals, should be dealt with on their merits but subject to the disciplines normally borne by appellants. The principles to be observed in appeals are thoroughly canvassed in Australian Workers' Union v. Poon Bros (WA) Pty Ltd and Others.(19) Among the many passages cited in that case, I find especially helpful the concise summary of the requirements borne by appellants given by a Full Bench comprising Coldham and Marks JJ and McLagan C:

". . .this is an appeal from the exercise of a discretionary judgment, and this being so, it is not enough that we would have decided otherwise. It must be shown that some principle was breached or overlooked or that the facts were misapplied or that some material

consideration was overlooked. In the broad sense it must be shown that the findings were not reasonably open upon the material presented.(20) _______________________________________________________________________________ (18)(1944) 53 CAR 836 at 840 (19)(1983) 4 394 4 IR 394 (20)Royal Australian Nursing Federation and Australian National Railways Commission and others, (1982) 275 CAR 202 at 203

The ITF is an applicant for registration whose rules allow it to enrol principals and deputy-principals. If the Registrar had found this breadth of membership unacceptable, he could have refused registration; and this Full Bench, on appeal, may do likewise. Refusal of registration might cause the ITF to amend its rules so as to overcome the objection. The Act affords a mechanism which would facilitate that process; but the Registrar is not an authority established to plan and prescribe the structure of trade unionism in an industry. The question is not whether it would be better for principals to be included or excluded from a union of independent schoolteachers; but whether a union which wishes to include them should be forced either to exclude them or to forgo registration.

One of the grounds of objection to TAA's registration was its capacity to enrol principals and deputy-principals. The Registrar published his reasons for granting the applications of TAA and ITF on the same day, and in his

decision on the ITF's application relied on what he said in the TAA matter. Accordingly, we must look to the TAA decision for the Registrar's reasons for allowing ITF to enrol principals and deputy-principals.

The major issues raised by the material before the Registrar were, in my view, the following:

. the issue of freedom of association - that is, the ability of employees (in this case, principals and deputy-principals) to join an organization to which some of them wish to belong;

. the possible disadvantages of common membership in an organization of persons responsible for management (especially hiring and firing) and employees subordinate to them;

. the possible competition between ITF and other associations formed specifically to represent the interests of principals; and

.
the possible displacement of arrangements develped within the State jurisdictions if the ITF were to secure a Federal award covering principals and deputy-principals.

It was the task of the Registrar to assess the arguments and the evidence relevant to these considerations and to arrive at an "on-balance" conclusion. There is no authority, so far as I am aware, for regarding any one of the considerations as paramount. Hence the Registrar's decision ought not to be nullified merely because it is at odds with a particular principle, relevant to one of the considerations, which has previously had the support of the Commission. I should add that section 41(1)(d) of the Conciliation and Arbitration Act affords an opportunity for interested persons and bodies to argue against the making of a Federal award covering principals and deputy-principals. This opportunity affects, in my view, the weight which needs to be given to the last-mentioned issue in dealing with the ITF's application.

There is, I believe, ample authority for the proposition that freedom of association is a principle respected by the Commission. It may be outweighed in any given case by other principles relevant to the achievement of the purposes of the Conciliation and Arbitration Act; but it is certainly a criterion which the Registrar should take into account.

The potentiality for conflict between the principal in his or managerial role and staff-members in their subordinate roles was perhaps the objection most emphasized by the appellants. In his decision about the TAA, the Registrar referred to a decision given by Dethridge CJ in 1933 in the Wool Classers' case. The following passage was quoted by the Registrar:

"This Court on several occasions has indicated that it is undesirable for employees who have to superintend the work of other employees, and who may have to discipline the other employees, should be in the same organization as the employees whom they may have to discipline. Quite obviously, as it has been put by Mr Justice Powers, it is impracticable for a man to serve two masters. I quite agree that a man in a position of authority would often find it impossible to carry on his work effectively and fairly to his employer if he is subject to being disciplined by the union because of his action in respect of employees over whom he has to exercise some control."(21)

This statement by Dethridge CJ is supportive of the objectors' arguments against the involvement of principals and deputy-principals in the ITF. The Registrar commented as follows:

"I am not aware that the undesirability referred to by his Honour has ever been an obstacle to the registration of an organization which included employees and their supervisors. The undesirability argument has usually been raised in support of an application to register a breakaway group of supervisors against the wishes of the parent organization. Today the exclusion of supervisor from membership in a union with those they supervise is even less practicable than it was at the time of his Honour's decision: it is not easy to identify any organization of employees that does not include both."

I agree with the thrust of the Registrar's comments. That is, there is no credible principle of industrial jurisprudence which prohibits the registration of a union containing both the supervisor and the supervised. Rather, the statement by Dethridge CJ articulates a consideration to be taken into account in the circumstances of particular cases. If Dethridge CJ supposed - as I very much doubt - that there could be an absolute rule on this point, he should not be followed. The Registrar showed by his subsequent

remarks that he had taken note of possible difficulties suggested by the evidence and submissions.

It is clear that many principals perceive their responsibilities to their employers as rendering it inappropriate for them to belong to the same union as other staff members. Others do not. The difference may, in some instances, be attitudinal; but there is also a diversity of relationships

between the principals and the employers. The Registrar said:

"the circumstances of Heads of non-Government schools vary. Some are virtually their own masters being accountable only to the school's governing body of which the Head is, in effect, the executive officer. On the other hand, Principals of schools in the Catholic systemic systems are controlled in varying degrees by the Catholic Education Office or equivalent in each State and are closer to Principals in the

Government school systems than they are to the semi-autonomous Heads."

The diversity of arrangements in Catholic schools is even greater than this passage suggests, for in some cases the parish priests and diocesan authorities have roles in the hiring and firing of staff. Given the diverse responsibilities of principals in non-Government schools, the Registrar would _______________________________________________________________________________

have been wrong, in my opinion, to determine the issue of the enrolment of principals on the basis that every principal has the role accorded to the heads of major non-systemic private schools. If the ITF were to retain the

capacity to enrol principals and deputy-principals, they could decide for themselves what was the appropriate course in their particular circumstances. This was the solution chosen by the Registrar.

Industrial Relations Commission Decision 244/1988 [1988] AIRC 1074; (25 March 1988)

At a glance

Court

Decision date

Source

Judgment (252 paragraphs)

Legislation Cited (3)

Cases Cited (2)

Industrial Relations Commission Decision 244/1988 [1988] AIRC 1074; (25 March 1988)