Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2002] NSWIRComm 144

Industrial Relations Commission (NSW)|2002-07-01|Before: Wright J, Walton J, Ms P, Mr J, Mr P

CITATION : Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2002] NSWIRComm 144 APPLICANT: New South Wales Teachers Federation PARTIES : RESPONDENT: Director-General of the New South Wales Department of Education and Training FILE NUMBER: IRC 4347 of 2001 CORAM: Wright J President; Walton J Vice-President; Bishop C CATCHWORDS : Award - Application to vary prior to end of nominal term - Applicant not relying on leave reserved clause - Application purportedly based on s169 of Industrial Relations Act 1996 - Application referred to Full Bench - Respondent sought dismissal or permanent stay of proceedings - No reliance placed on "no extra claims" clauses - Respondent alleged applicant estopped from bringing proceedings and that application was not properly brought under s169 - Primary test for determining an application seeking to vary an award is whether the award sets conditions that are "fair and reasonable" - Existing award provisions considered to be "presumptively fair and reasonable" - When considering whether provisions are fair and reasonable Commission is to have regard to provisions of the Anti-Discrimination Act 1977 - Both direct and indirect discrimination must be considered - Section 169(4) to be given a broad and purposive construction - When considering whether an award discloses unlawful discrimination all the circumstances of the case are to be considered - However, even if the preconditions of s169(4) are met, there remains a general discretion in the Commission as to what remedy will be granted - Features as to exercise of discretion considered - Application of respondent to dismiss or permanently stay application dismissed - Hearing of application may proceed, but applicable no extra claims provision shall apply to extent of precluding any decision on Federation application prior to expiry of period specified in that provision LEGISLATION CITED : Anti-Discrimination Act 1977 s24 Industrial Relations Act 1996 s10 s17 s169 Amery & Ors v The State of New South Wales [2001] NSWADT 37 Australian Transport Officers Federation v State Public Service Federation (1981) 34 ALR 406 Foran v Wight (1989) 168 CLR 385 Hi Fert Pty Ltd and Another v Kiukiang Maritime Carriers In and Another (1998) 159 ALR 142 Legionne v Hateley (1983) 152 CLR 435 Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 CASES CITED : Public Hospital Nurses (State) Award [2002] NSWIRComm 100 Re Corrections Health Nurses (State) Award (1999) 90 IR 235 Re Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202 Re Equal Remuneration Principle (2000) 97 IR 177 Re Operational Ambulance Officers [2001] NSWIRComm 331 Re Principles for Review of Awards (1998) 85 IR 38 Re State Personal/Carer's Leave Case (1998) 84 IR 416 Virtue v New South Wales Department of Education (1999) 92 IR 428 HEARING DATES: 10/05/2001 DATE OF JUDGMENT: 06/28/2002

APPLICANT: Mr S Crawshaw SC with Ms P F Lowson of counsel

INSTRUCTED BY: Mr J Hennessy New South Wales Teachers Federation

LEGAL REPRESENTATIVES: RESPONDENT: Mr P Menzies QC with Mr S Benson of counsel

INSTRUCTED BY: Mr G Boyd Crown Solicitors Office

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Wright J, President Walton J, Vice-President Bishop C

Friday, 28 June 2002 MATTER No IRC 4347 OF 2001

CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. Application by the New South Wales Teachers Federation for variation re clause 2.57 temporary teachers. DECISION OF THE COMMISSION [2002] NSWIRComm 144 1 This matter concerns an application pursuant to s 169(4) of the Industrial Relations Act 1996, by the New South Wales Teachers Federation ("the Federation") to vary the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award ("the award") made by the Full Bench of the Commission on 15 December 2000: see Re Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202. 2 The present proceedings had their genesis in an application filed by the Federation to vary the award, following a determination of the Administrative Decisions Tribunal ("the ADT") of 12 March 2001: Amery & Ors v The State of New South Wales [2001] NSWADT 37. The Federation contended that the ADT, in that decision, found unlawful discrimination which arose from the award. The application seeks to vary the award so as to remove the alleged unlawful discrimination. 3 The proceedings initially came before Schmidt J and were subsequently referred to a Full Bench. The proceedings were then allocated to Walton J, Vice-President for preliminary programming and directions. When the matter was called before the Vice-President, the respondent employer made an application to have the proceedings dismissed. His Honour, having heard briefly from the parties as to this preliminary matter, issued directions requiring the parties to set out contentions and the materials upon which they would rely in relation to this preliminary issue. Upon the receipt of that material, the matter was to be listed before the Full Bench for hearing of the preliminary issue. This decision is limited to the respondent's application for the proceedings to be dismissed. 4 The issues which are raised in the substantive application brought by the Federation are relevant to the respondent's application to dismiss the proceedings and, for convenience, the various parts of the application are set out. The application sought to vary the award in the following terms: 1. In subclause 2.57 delete the words "two terms or more" and insert in lieu the words "eight weeks or more";

In subclause 27.5 delete the present words and insert in lieu the following words:

"On engagement as a temporary school teacher on or after day one of term one 2001, a temporary school teacher shall be placed on and paid in accordance with the same common incremental scale in Schedule 1 that a permanent school teacher with the same service would be entitled to on appointment" 5 The grounds and reasons in support of the application were stated as: 1. Section 169(4) of the Industrial Relations Act 1996 (the Act) allows an award to be varied at any time by the Commission in order to remove any unlawful discrimination arising from the award. 2. On 12 March 2001 the Administrative Decisions Tribunal (ADT) decided that casual supply school teachers who worked eight weeks or more were discriminated against on the basis of their sex because they were not afforded the same terms and conditions of employment as permanent school teachers. 3. Although the ADT decision was based on the industrial instruments that preceded the current Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (the current award), the rationale and principles in the ADT decision lead to the conclusion that the current award has provisions that discriminate against women. 4. Pursuant to Section 169(1) of the Act, the Commission must, in the exercise of its functions, take into account the principles contained in the Anti Discrimination Act 1977. 5. The Parties to the award and the Commission cannot ignore the continuing discrimination in the current award, as identified by the ADT decision. 6. The award should be amended to remove those clauses that unlawfully discriminate against women. 7. For such other grounds and reasons as the Commission sees fit. 6 The particulars of the application were as follows: 1. The current award introduced a new classification of temporary school teacher that affords some but not all permanent teachers who work in one engagement for eight weeks or more the same terms and conditions of employment as permanent school teachers. 2. The definition of temporary school teachers in subclause 2.57 of the current award does not include non permanent teachers who work in one engagement for one to four days per week unless they are employed for two terms or more. 3. By not providing that the definition of "temporary school teacher" in subclause 2.57 of the current award includes non permanent teachers who work in one engagement for one to four days per week unless they are employed for two terms or more. 4. By not providing that the definition of "temporary school teacher" in subclause 2.57 of the current award includes non permanent teachers who are employed in one engagement for one to four days per week for eight weeks of more, the current award continues the unlawful discrimination identified in the ADT decision. 5. The current award provides in subclause 27.4 that temporary school teachers can move up the common incremental salary scale in Schedule 1 of the award in a similar manner to permanent school teachers. 6. Subclause 27.5 of the current award provides that temporary school teachers can move up the common incremental salary scale in Schedule 1 of the award in a similar manner to permanent school teachers. 7. Subclause 27.5 of the current award provides that temporary school teachers have as their starting point, on engagement from 2001 onwards, a place on the common incremental salary scale no higher than Step 9, irrespective of the length of prior service as a school teacher. 8. Permanent school teachers on appointment have all their prior service recognised and if this is sufficient, may be placed at any point up to Step 13 on the common incremental scale. 9. By not recognising all prior years of service on engagement and by not allowing school teachers immediate access to all points on the common incremental scale, the current award continues the discrimination identified in the ADT decision.

The Decision of the Administrative Decisions Tribunal 7 Before turning to consider the submissions of the parties, it is useful to give a brief outline of the proceedings before the ADT and the determination in Amery. 8 A number of proceedings were brought initiated in the ADT under ss24 and 25 of the Anti-Discrimination Act 1977, alleging that the terms and conditions of their employment were discriminatory on the basis of gender. The surrounding facts and the basis of the applications was summarised in paragraphs [39] - [40] of the Tribunal's decision in the following terms: 39 Turning now to the detail of the evidence of work value in the cases before us in this inquiry, it is necessary to consider the position of each claimant before any particular claim can be substantiated. At the outset however it is helpful to review the general nature of the case presented by each complainant. Each of the complainants have had families and several still manage families with young children. Each is a professional teacher who has dedicated her professional career to teaching in NSW schools, and preferably the State system. One of the complainants has now left the State system for the independent school system but has expressed the preference for permanent employment in the State system. Except for two of the complainants, all were permanent staff of the NSW Teaching Service before resigning in order to rear children or for family reasons. In each case, after attending to the family responsibilities, the complainants have sought to return to their profession in the NSW Teaching Service. To that end each has reapplied for employment, and some for permanent status. Each of the women was paid at the top of the casual pay scale as at 8 August 1994 when the Anti-Discrimination Act 1977 commenced to operate in the industrial arena. That is, they had graduated to level 5 in the casual scale; the equivalent of level 8 of the permanent scale. Of course, throughout the period from August 1994 to date, they have not progressed past the top of casual scale levels provided for in the enterprise agreement and the award. 40 For all of the complainants who had, before ceasing work for family reasons, been permanents, payment at this level meant a decrease from that which they received when they were in permanent employment in the Teaching Service. Each of the women has throughout the period of the claim (8 August 1994 to date) worked continuously for periods of eight weeks or more at the schools to which they have been appointed, by the Teaching Service. It is important to note that the resolution of the present matter does not depend upon an assertion that the women have been discriminated against because their applications for permanency have been refused. Were that the position, it would be relevant, as Mr Menzies for the respondent submitted, that many of the complainants in seeking to review their professional careers, placed territorial limits upon their place of work for family reasons. The gravamen of the case is an assertion that the work performed by the women is of no less equal value that the work they had performed as permanent staff (in most cases), and of no less equal value than the work of comparable professionals in the same service who have throughout the period of the claim been permanent staff. 9 The Federation contended that the practice of restricting casual pay scales to level 8 of the permanent scale resulted in casual employees being underpaid, having regard to the duties which they performed and their seniority in employment. It was further contended that the policy was discriminatory because it operated harshly in the case of women teachers as it effectively precluded them from achieving permanent status due to the limitations on travel and career that family responsibilities entail. 10 The Tribunal considered that the different pay structures for casuals and permanent employees gave rise to a "condition or requirement" within the meaning of s 24(1)(b) of the Anti-Discrimination Act and it was this condition or requirement that was "a prerequisite for winning access to the higher salary scales under the award and the enterprise agreement". The Tribunal considered, on the evidence before it, that it was easier for men to comply with that condition "presumably because men are more able to move to take up permanent positions that women" and that on the evidence before it, it was appropriate to make a finding that "'a substantially higher proportion' of men 'comply or are able to comply' with the requirement or condition … than women". Finally, in accordance with s 24(1)(b), the Tribunal considered whether this condition or requirement was reasonable. The Tribunal approached this consideration in this way (at [19]): 19 There was no evidence before the Tribunal to indicate that financial or economic considerations, such as might be relevant to budgetary appropriation by the Parliament explained the difference in treatment of men and women teachers or that the budget would be adversely affected by a conclusion that the condition or requirement is unlawful. Nor was it submitted that the condition was reasonable because it might discriminate against some men, or that it was desirable because it might tend to attract men to the Teaching Service. It was however submitted by the respondent that the Education Teaching Service in NSW would be adversely affected if the condition were removed because the State would be unable to provide "continuity of teaching services and staffing flexibility". It was suggested that a ready supply of casual, including long term casual, relief teachers was vital to the continuation of the current standards and high levels of teaching in State public schools. However, the question before us in our view is not whether the whole system of casual staffing arrangements is beneficial for the Teaching Service, but whether it is unreasonable to pay female teachers at a lower salary scale if they perform work of equivalent standard and value to permanent staff with access to permanent pay scales. In short if there is no sensible factor to explain the difference in treatment other than the policy itself then a significant question must arise as to its reasonableness if left unexplained. 11 The Tribunal found, on the evidence before it, that "the work of supply casuals in general, is of equal value to permanent staff, at least with respect to claimants in the category of teachers who are engaged to work continuous periods of eight week blocks or more per term and who do that work". The Tribunal then considered the case of each applicant individually. Submissions of the Respondent 12 Mr P Menzies QC, who appeared with Mr S Benson of counsel for the respondent, contended that whilst there was power vested in the Commission to hear and determine the substantive application brought by the Federation, it was inappropriate to do so. In the exercise of its discretion, the Commission ought not entertain the application. 13 This submission relied on two bases. Firstly, the respondent submitted that the objects of the Act gave primacy to consensual arrangements between the parties: see Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award. The award, the subject of the application, was made as the result of an application for a new award which was presented to the Full Bench as an application which proceeded by consent. This consent situation was reached after significant and prolonged negotiation and expressly acknowledged that there were no issues arising under s 23 of the Act or which gave rise to discrimination otherwise. The mandatory requirements of s 23 of the Act were given careful consideration by the Commission in its decision (at [32] - [44]). It is of particular relevance to note paragraph [42] of the decision: 42 If a term of an award gives rise to issues under s23 of the Act (or if the evidence reveals that the operation of the award would give rise to such issues), then it is incumbent upon the Commission to resolve that issue, having regard to the requirements of s23. In the present case, the Federation eschewed any notion that any term of the award had the effect of offending s23 of the Act. This was presumably put upon the basis that a term of the award per se did not create the difficulties alluded to in Ms Simpson's statement. The proposition also seems to be advanced on the basis that there is no evidence, as such, to sustain the contentions advanced by Ms Simpson. 14 The statement of Ms Simpson referred to therein, made in accordance with the requirements of Practice Direction No. 6, included the following evidence by her: However, the Federation is of the opinion that there are grounds in the future, ie after the expiry of the terms of the award, to achieve further equality and remuneration and other conditions for casual and temporary school teachers compared to permanent school teachers. This could include providing that all periods of service as a non-permanent school teacher are taken into account in determining at which incremental salary and/or rates of pay levels a non-permanent school teacher as classified, and allowing teachers still classified as casual school teachers to progress beyond the equivalent of salary incremental level 8 for permanent school teachers". 15 It was submitted that, on the evidence of the applicant in the proceedings which gave rise to the award, the very matter which was now being sought was adverted to with a clear indication that it would be dealt with after the expiry of the award. The consent position presented to the Full Bench comprised a "package deal" or agreement reached between the parties. The Federation ought be estopped from resiling from the position it expressed to the Full Bench in the making of the award. 16 Secondly, the application, being based on s 169(4) of the Act, was said to be incompetent. Mr Menzies submitted that the general power to vary an award was contained within s 17. The power in s 169(4) provided a power to vary an award in strictly limited circumstances. That is, it was limited to an application for the removal of "unlawful discrimination" from an industrial instrument where such unlawful discrimination "arose from the instrument". The limitations expressed in the section were significant. 17 In this regard it was submitted the Commission had defined what discrimination meant in Re Principles for Review of Awards (1998) 85 IR 38 at 50 as follows: The construction of the word must of necessity begin with its ordinary meaning. Discrimination' is defined in the Macquarie Dictionary (2nd ed, 1991) at p504 as: 1. The act of discriminating. 2. The resulting state. 3. The making of a difference in particular cases as in favour of or against a person or thing. 4. The power of making nice distinctions; discriminating judgment...' In the Compact Oxford English dictionary (2nd ed, 1991) it is defined at p 445 as: 1a. The action of discriminating; the perceiving, noting, or making a distinction or difference between things; a distinction (made with the mind, or in action). Also with against . 1b. The fact or condition of being discriminated or distinguished. 1c. The making of distinctions prejudicial to people of a different race or colour from oneself; racial discrimination.' The word must also be considered in its statutory context. In s19(3)(e) the phrase used is any issue of discrimination under the awards'. The word is used in a variety of other contexts in the 1996 Act: in s3(f) the use is as an object of the statute, prevent and eliminate discrimination in the workplace'; in the definition of industrial matter' in s6(2)(f) discrimination' is used by reference to employment in any industry (including remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1997 applies; discrimination in the workplace' is again referred to in s158(1); in s167(2) the President of the ADB has a right to intervene in any proceedings if he establishes that the proceedings concern unlawful discrimination under the Anti-Discrimination Act 1977; and, finally, in s169(4) an industrial instrument (award, enterprise agreement, public sector industrial agreement, former industrial agreement, contract determination or contract agreement) may be varied to remove any unlawful discrimination arising from the instrument'. That provision appears in the setting of s169(1) which provides: The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977.' It may be observed that the statutory draftsman clearly drew distinctions in various provisions of the 1996 Act between the wider concept inherent in phrases such as an issue of discrimination under the awards' and discrimination in the workplace' compared with the narrower concept inherent in the references to unlawful discrimination under the Anti-Discrimination Act or discrimination on a ground to which that Act applies . Subject to one qualification, it necessarily follows from this approach to the drafting of the legislation that there are references made to discrimination in the 1996 Act in both the narrower and wider senses. In s19(3), it seems to us, it is the wider use of the word which is encompassed. The qualification referred to above is, however, an important one. Section 169(1) requires the Commission in the exercise of its functions to take into account the principles contained in the Anti-Discrimination Act; that obligation applies to award reviews conducted under s19(1). The concept was recently discussed by a Full Bench of the Commission in the State Personal/Carer's Leave Case 1998 (unreported, Wright J President, Cahill J Vice-President, Schmidt J and Buckley C, IRC 96/2, 10 December 1998 at p32). It follows that in dealing with an issue of discrimination under the awards' in a s19 review the Commission is to take account of the principles contained in the Anti-Discrimination Act'. It is perhaps trite, but important to observe, that in reviewing any issue of discrimination under the award' in a s19 review the Commission would not change an award inconsistently with the provisions of the Anti-Discrimination Act; to do so would only invite an application for variation of the award under s169(4) of the 1996 Act and , it seems to us, that would have to be avoided. 18 In Mr Menzies submission, for the power in s 169(4) to be enlivened, the application must be directed towards "some form of identifiable unlawful discrimination under the NSW Anti-Discrimination Act 1977" and that such unlawful discrimination "must be shown to arise from the instrument itself". The more general power to vary an award is contained within s 17(3)(c). Even accepting that the determination of the ADT was correct, which the respondent did not, the determination only found indirect discrimination which arose from a work practice adopted by the Department. There were no provisions in the award itself which gave rise to unlawful discrimination or discrimination otherwise. The term "arose from", whilst drawing its construction from its context, ought be considered to be narrower in compass than "arising in connection with" and "arising under": Hi Fert Pty Ltd and Another v Kiukiang Maritime Carriers In and Another (1998) 159 ALR 142. 19 In the present case, it would be necessary for the Federation to lead a considerable amount of evidence as to the operation of the contract and the practices of the respondent. All of this material is external to the instrument and should not be considered in determining whether there is discrimination arising out of the terms of the instrument: Hi Fert v Kiukiang. Submissions of the Federation 20 Mr S Crawshaw SC, who appeared with Ms P F Lowson of counsel for the Federation, submitted that the Commission had power to make the variation pursuant to s 169(4). If the respondent's argument were correct and s17(3)(c) was the relevant provision providing power to vary the award in circumstances of unlawful discrimination, s 169(4) would be superfluous. In any event, so it was contended, the application for the dismissal of the proceedings was premature. In the Federation's submission, assuming that the contention of the respondent be correct and that s 17(3)(c) was the operative provision providing power for variation of the award, the Commission must first hear the Federation's case before it could determine whether the application was not contrary to the public interest and that there was a substantial reason to make the variation. This, in the Federation's submission, was really besides the point as should the Commission find that the award contained unlawful discrimination, this would plainly satisfy the requirements of s 17(3)(c). 21 The Federation contended that the respondent's submissions were based on a misrepresentation of what occurred in the proceedings before the Full Bench which gave rise to the award. Whilst it was conceded that there were some issues raised in the proceedings giving rise to the award that will be touched upon in the Federation's application, neither the Federation's submissions nor the Commissions decision touched upon s 169(1) of the Act. The extract from the judgment relied upon by the respondent's needs to be seen in context of the following passages from the judgment in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award: 42 If a term of an award gives rise to issues under s23 of the Act (or if the evidence reveals that the operation of the award would give rise to such issues), then it is incumbent upon the Commission to resolve that issue, having regard to the requirements of s23. In the present case, the Federation eschewed any notion that any term of the award had the effect of offending s23 of the Act. This was presumably put upon the basis that a term of the award per se did not create the difficulties alluded to in Ms Simpson's statement. The proposition also seems to be advanced on the basis that there is no evidence, as such, to sustain the contentions advanced by Ms Simpson.

43 On the evidence available to the Commission, the proposed award does not offend s23 of the Act, and indeed, is designed to remove difficulties that might have otherwise attracted the intervention of the Commission pursuant to s23. It would appear that the contentions raised by the Federation are largely matters of speculation which, as conceded by Mr Crawshaw, really require further investigation before any firm position can be ascertained.

44 This is not to say that a mere assertion by parties to a consent award that s23 of the Act is not attracted in a particular case would result in a conclusion being reached by the Commission that the requirements of s23 had been satisfied in any particular matter. It may well be appropriate that in a particular case the Commission may make further inquiries of the parties. However, in the present matter, and having regard to the evidence led in the proceedings, and the significant reforms introduced by the award consistent with s23 of the Act we do not consider this course to be warranted. We also note in this respect the leave reserved provisions contained within the award which will enable the parties to address any relevant issue which may arise. 22 When viewed in that way, it was wrong to contend that there was some estoppel which would arise to prevent the bringing of the application. The Federation's position in the award proceedings was that there were issues with respect to equal remuneration in relation to temporary teachers, however, there was no cogent evidence to support those contentions. The Commission was well aware of this position. The Federation was not silent as to its true position nor did it represent that it would not bring proceedings to remove any unlawful discrimination. 23 It was contended that clause 14 of the award expressly contemplated an application for variation being brought during the life of the award: Except as allowed by the Industrial relations Act 1996, there shall be no industrial action and no further salaries or conditions claims by the parties prior to 31 December 2003 in relation to matters expressly contained in the award.

This clause contemplated, in Mr Crawshaw's submission, a variation pursuant to s169(4), or in the alternative, s 17(3)(c). 24 Further, clause 14.2 of the award ought be considered. It was in the following terms: If follows that in fulfilling their obligations under the dispute resolution procedures prescribed under clause 12, the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of the award are not directly, or indirectly discriminatory in their effects. It shall be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operations, has a direct or indirect discriminatory effect. 25 Mr Crawshaw contended that no estoppel arises where there was some ambiguity about whether a representation has been made: Legionne v Hateley (1983) 152 CLR 435-436; Foran v Wight (1989) 168 CLR 385 at 410-411 and 435 - 436. 26 The Federation made two submissions in the alternative. Firstly, it was contended that the doctrine of estoppel has no application to parties to arbitral proceedings and awards. The following comments of the Federal Court in Australian Transport Officers Federation v State Public Service Federation (1981) 34 ALR 406 at 413 were relied upon: The Commission does not sit to enforce existing private rights, but rather to exercise an administrative arbitral system and create by means of conciliation and arbitration new rights and modify exiting rights. The principles upon which estoppel is founded are stated to be the well known Latin maxims rei publicae ut sit finis litiumaand nemo debet bis vexari por eadem causa. Whether this broad rule of public policy and these principles are applicable in the case of these functions seems to us a matter of considerable doubt. 27 Secondly, to the extent that there was any substance to the arguments of the respondent against reopening of the consent award, there has been a significant change in circumstances in that the ADT has found that the award provisions unlawfully discriminate against non-permanent teachers. This provided, good and cogent reasons for the reopening of the award, at least for the purposes of hearing the Federation's application. Consideration 28 It should be initially noted that the respondent, in bringing its application to dismiss or stay the substantive application by the Federation, do not rely on the "no extra claims" provision within the award. The respondent's resistance to the application relies, firstly, upon an estoppel, which it contends arises as the result of the conduct by the Federation and the agreement reached between the parties in the proceedings before the Full Bench which gave rise to the award. Secondly, the respondent submitted that the application was flawed in that it was based on a limited power to vary awards contained within s 169(4) of the Act. However, the respondent conceded that should the Commission find there was unlawful discrimination as contemplated by s 169(4) of the Act within the award, any estoppel could be overcome by the requirements of the statute. 29 It is appropriate to initially consider the decision of the Full Bench which gave rise to the award. The award, the subject of this application, was made as a result of a consent application filed on behalf of the parties to these proceedings, which was the subject of a decision earlier referred to of the Full Bench of the Commission comprised of Walton J, Vice-President, Glynn J, Harrison DP and Bishop C on 15 December 2000. 30 In that decision the Commission made the award, which consolidated and replaced the provisions of the Crown employees (Teachers and Related Employees) Salaries and Conditions Award and the New South Wales TAFE Commission and Other Education Staff - Salaries and Conditions Award 1996 and the Crown Employees (Teachers Locality Allowances &c) Award. 31 The decision commenced with an acknowledgment that the consent application under consideration was "in culmination of lengthy and detailed negotiations between the parties", involving the parties to the proceedings having met frequently over an period extending for some six months. The decision then sets out the submissions of the Federation, highlighting what it considered to be the more salient features of the variations made by the consolidation of the awards. Notably, the decision in paragraph [21] refers to the 'conditions and terms' of employment which were varied by the making of the new award: 21 [Counsel for the Federation] then went on to deal with those matters of award variation dealing with conditions and terms of employment: … (iii) Clause 13 of the general section provides that, except as allowed by the Act, there shall be no industrial action and no further salaries and conditions claims by the parties prior to 31 December 2003 in relation to matters expressly contained in this award. Ms Lowson emphasised that the operation of clause 13, No extra claims, did not prohibit or interfere with the application of clause 16, Leave reserved, which allows the Federation to apply not before July 2003 to the Industrial Relations Commission for an award variation to vary the conditions of part time casual TAFE teachers in respect to the conditions of full time teachers. Clause 16 notes that, "the parties agree that no financial consequence of any decision in relation to the application shall take effect before January 2004". It is also noted that clause 15 of the award contains a leave reserved provision. It was also submitted that the Commission could make a leave reserved provision in an award, notwithstanding the provisions of s17(3) of the Act. It was submitted that the leave reserved clause represented the agreement of the parties to re-open the award (after a specified date) during the nominal term of the award. This agreement was consistent with and could be given affect to under s17(3)(d) or alternatively s17(3)( a) of the Act. 32 The decision then refers to submissions made by senior counsel for the Federation in relation to matters of equal remuneration, the operation of s 23 of the Act and also to the respondents' reply (at [26] - [30]): 26 The parties were in accord that the award sought satisfied the requirements of the Anti Discrimination Principle. The required undertaking is found at clause 23 of the application.

27 On completion of the outline of changes to the award and initiatives agreed between the parties, Mr Crawshaw turned to the issue of the application of s23 of the Act and the affidavits filed by the parties to the application pursuant to Practice Direction No.6 (2000) 317 NSWIG 256 in relation to the application of that section.

28 Mr Crawshaw referred to affidavits sworn by Ms Simpson and Mr Irving and put that the introduction of the temporary teacher classification is, in the view of the Federation, a significant matter in consideration of the question of 'equal remuneration' pursuant to s 23 of the Act. It was submitted that the introduction of that classification represented a substantial step towards providing equal remuneration for men and women for the purposes of s23 of the Act. Mr Crawshaw referred to the affidavits of Ms Simpson and Mr Irving, and submitted that there was a difference of opinion between the parties as to whether there was further to be done to achieve equal remuneration or whether the task was complete.

29 However, the Federation submitted that a review as to 'equal remuneration' should occur, in accordance with the leave reserved clause of the award.

30 The Department did not share this view, acknowledging, however, the position expressed by the Federation. Mr Menzies submitted that the issue would be addressed, if need be, at an appropriate time in the future. 33 The issue of equal remuneration and discrimination, and the manner in which the Commission, in making an award, was to approach such matters was a significant consideration in the decision. The relevant passage of the decision commenced at paragraph [32]: 32 In considering the application of s23 of the Act, it is appropriate to set out the relevant parts of the affidavits filed pursuant to Practice Direction No.6 , namely the affidavits of Susan Jane Simpson, President of the Federation, and Richard Paul Irving, General Manager of Personnel within the Department. 33 Ms Simpson deposed that: 2. The New South Wales Teachers Federation ("the Federation") and the Director General of the New South Wales Department of Education and Training and the Managing Director of the New South Wales TAFE Commission ("the employer") by consent, apply to the Commission to make the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award ("the award") for the grounds and reasons set out in the application.

It is the Federation's understanding that a greater percentage of casual school teachers compared to permanent school teachers are women and that both the number and percentage of casual school teachers compared to permanent school teachers has been increasing over time.

The Federation is of the opinion that the award has made advancements in providing equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.

Under the 1996 Crown Employees (Teachers and Related Employees) Salaries and Conditions Award, school teachers appointed on a casual basis could not progress beyond the equivalent of salary incremental level 8 for permanent school teachers while permanent school teachers had access to higher incremental levels.

The situation in paragraph 5 above, in the Federation's view, has been improved by the introduction of the new classification of temporary school teacher in the award. Under the award a casual school teacher employed in one engagement of work full time for a period of four weeks or more or in one engagement for one to four days per week for two terms or more will be classified as a temporary school teacher. Upon being so classified, and for work performed as such, a temporary school teacher will be able to progress beyond incremental salary level 8. This will achieve greater equality between non-permanent and permanent school teachers.

However, the Federation is of the opinion that there are grounds in the future, i.e. after the expiry of the term of the award, to achieve further equality in remuneration and other conditions for casual and temporary school teachers compared to permanent school teachers. This could include providing that all periods of service as a non permanent school teacher are taken into account in determining at which incremental salary and/or rates of pay levels a non permanent school teacher is-classified, and allowing teachers still classified as casual school teachers to progress beyond the equivalent of salary incremental level 8 for permanent school teachers.

It is the Federation's understanding that over time there has also been a significant increase in both the number and percentage of TAFE teachers who are engaged on a part time casual basis. Part time casual TAFE teachers are predominantly women. Pursuant to the leave reserved clause of the Award.(Clause 16), the Federation may apply to the Commission for an award variation to vary the conditions of part time casual TAFE teachers in respect of the conditions of full time teachers. The Federation reserves the right to rely on equal remuneration principles to support such an application 34 Mr Irving deposed that: 3. I contend that the draft consent award so filed provides equal remuneration and other conditions of employment for men and women doing, work of equal or comparable value as required by section 23 of the Industrial Relations Act 1996.

The basis of my contention is that the draft award provides:

(a) equal rates of pay and allowances for men and women;

(b) the same eligibility criteria for employment for men and women for each job classification encompassed in the draft award;

(d) conditions of employment which ensure equal access to employment for men and women. In the year 1999 permanent teaching staff in schools comprised 17,340 men (34%) and 33,285 women (69%). In TAFE permanent teachers and other education staff comprised 3,223 men (57% and 2,406 women (43%).

35 With respect to the issues raised by these affidavits Mr Menzies put that the statute had been complied with, submitting that the Commission would be comfortably satisfied on the evidence of Mr Irving in that regard; and further that the Department, like all other State employers, is an equal opportunity employer. Mr Menzies put that the criteria for employment within the Department are the same for males and females; rates of pay are the same for males and females; access to promotion is the same for males and females; and that there is no element whatsoever of any aspect of employment other than that of equality between male and female employees. He submitted that any distinction in salary between temporary teachers and casual teachers arises from issues of work value previously determined within the Commission, not any gender basis. 36 Mr Crawshaw submitted that the issue raised by Ms Simpson did not go directly to a term of the award. He submitted that the issue raised by his client was based upon the different patterns of employment between permanent and non-permanent employees. The resolution of the issue would depend upon the pattern of non-permanent employment as distinct from full time employment or permanent employment. 37 Furthermore Mr Crawshaw said that the issue raised in the affidavit of Ms Simpson had a long history, in the sense that the Commission had previously made a decision distinguishing between the work value of non-permanent employees and permanent employees. It was for that reason that the Federation did not submit that a term of the award itself raised a relevant issue. At the end of the day, the only means by which the matter could be properly resolved, it was submitted, was by the Commission receiving evidence as to the pattern of employment and the distribution of male and female employees within those employment arrangements. There would also need to be evidence as to the work value of the respective categories of employment. Mr Crawshaw made it clear that his client would not call evidence in these proceedings as to those matters. The only evidence brought in these proceedings by the Federation would be the evidence led on affidavit from Ms Simpson in which certain general contentions were made. 34 The Commission then dealt with the mandatory requirements to "ensure" that awards of the Commission did not contain discriminatory provisions and provided pay equity to employees performing work of equal or comparable value, setting out sections of the judgment in Re Equal Remuneration Principle (2000) 97 IR 177 (at 203 - 204). Further, the Commission emphasised the significant role which was to be played in the processing of a consent award application by the affidavit required by Practice Direction No. 6. The decision then continued (at [40]): 40 We concur with these conclusions. Additionally as to the operation of s23 of the Act, we agree with the approach of Walton J in Re Riverina Water County Council Enterprise Award 1998 (1999) 87 IR 24 at 26 as follows: In construing such provisions the ordinary principle that requires that particular provisions of a statute must be read in the light of the statutory objects is of particular significance. There is a special responsibility to take into account and give effect to the statutory purpose: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359. Section 3(f) is in the following terms: 'To prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value'.

The object repeats the statutory imperative of s23 to ensure equal remuneration for men and women doing work of equal or comparable value (although it does not refer to 'other conditions of employment'). However, s3(f) also contains the objective to 'prevent and eliminate' discrimination in the work place. Both in the ordinary sense of the words and, in particular, in this statutory context, the words 'prevent' and 'eliminate' create a wide ranging obligation in relation to discrimination in the work place. The legislature directs attention to both preventative as well as remedial action, and by the use of the word `eliminate' encompasses in the objective both deliberate and thoughtless or reckless acts of discrimination : X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248 at 257.

The clear and evident purpose of s23 (particularly when operating in conjunction with s19(3)(e) which imposes requirements in the case of award reviews) is to achieve equal remuneration for men and women doing work of equal or comparable value by preventing the inclusion in and expunging from the system of awards in this State provisions which fail to meet this requirement. 41 In adopting these principles, we wish to make it clear that we do so in the light of and consistently with, the terms and effect of the Equal Remuneration Principle adopted by the Full Bench in Re Equal Remuneration Principle . We wish to make it clear that, in relation to an application to make a new award, the Commission must consider whether the terms of that award provide equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. This will necessarily require an examination of the evidence brought to the Commission pursuant to Practice Direction No.6 .

42 If a term of an award gives rise to issues under s23 of the Act (or if the evidence reveals that the operation of the award would give rise to such issues), then it is incumbent upon the Commission to resolve that issue, having regard to the requirements of s23. In the present case, the Federation eschewed any notion that any term of the award had the effect of offending s23 of the Act. This was presumably put upon the basis that a term of the award per se did not create the difficulties alluded to in Ms Simpson's statement. The proposition also seems to be advanced on the basis that there is no evidence, as such, to sustain the contentions advanced by Ms Simpson.

44 This is not to say that a mere assertion by parties to a consent award that s23 of the Act is not attracted in a particular case would result in a conclusion being reached by the Commission that the requirements of s23 had been satisfied in any particular matter. It may well be appropriate that in a particular case the Commission may make further inquiries of the parties. However, in the present matter, and having regard to the evidence led in the proceedings, and the significant reforms introduced by the award consistent with s23 of the Act we do not consider this course to be warranted. We also note in this respect the leave reserved provisions contained within the award which will enable the parties to address any relevant issue which may arise . (emphasis added) 35 We would note that, in the relevant award, there were two clauses which specifically dealt with no extra claims and leave reserved. Those clauses were clauses 13 and 16, in the following terms: 13. No Industrial Action and No Further Claims 13.1 Except as allowed by the Industrial Relations Act 1996, there shall be no industrial action and no further salaries or conditions claims by the parties prior to 31 December 2003 in relation to matters expressly contained within this award. …

Leave Reserved 16.1 The Federation may apply, not before July 2003, to the Industrial Relations Commission for an award variation to vary the conditions of part time casual TAFE teachers in respect of the conditions of full time teachers. The parties agree that no financial consequences of any decision in relation to the application shall take effect before January 2004. 36 From this analysis of the decision of the Full Bench, it is plain that a live issue was the material contained within the affidavit of Ms Simpson and the Federation went to some lengths to reassure the Commission that the issues there highlighted did not arise from the terms of the award. The Federation was content not to proceed to lead evidence of the issues highlighted in Ms Simpson's' affidavit and accordingly entered into the agreement to be bound by the award until 2003. 37 Whilst we do not express any final view on the applicability of the doctrine of estoppel in the more strict sense in the context of arbitral proceedings setting conditions in an industrial instrument, we would consider that the history of the proceedings would be of particular importance to the exercise of the discretion vested in the Commission to re-open and vary an award, be it pursuant to s 17 of the Act or otherwise. 38 We would further observe, as was recently recognised by the Full Bench in Re Operational Ambulance Officers [2001] NSWIRComm 331, the "primary test" for evaluating whether an award should be altered is whether the conditions of employment in the award are "fair and reasonable". Whilst made in the context of a special case, a consideration which may not be relevant in consideration of these proceedings, it was there recognised that conditions in an existing award are to be treated as "presumptively fair and reasonable" (although it must at once be recognised that it is sufficient to rebut that presumption by evidence sufficient to satisfy the ordinary civil standard of the balance of probability: see Public Hospital Nurses (State) Award [2002] NSWIRComm 100 and Re Operational Ambulance Officers). 39 We now turn to the respondent's contentions relating to s 169(4). It submitted that, such power was enlivened only when it can be shown that there is firstly, unlawful discrimination, and secondly, that the unlawful discrimination arises from the terms of the industrial instrument. The application as presently framed, so it was contended, does not fall within that limited power. 40 As we understand the respondent's contentions, its is alleged that the ADT decision in Amery, being the foundation of the Federation's claim, found indirect discrimination based on a policy which was adopted by the respondent, not on the award itself. Unlawful discrimination, as contemplated by the section, can only be determined by examining the instrument itself; extrinsic evidence can be of no assistance. 41 In our view, the sub-section is not limited in the manner contended for by the respondent. Section 169 is in the following terms: 169. Anti-discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977 . (2) An issue that is the subject of proceedings before the Administrative Decisions Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 may not be the subject of proceedings before the Commission without the leave of the Commission. (3) The Commission may admit in proceedings before it evidence given before, or findings made by, the Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 . This subsection does not prevent the admission of any other evidence in the proceedings that contradicts any such evidence or finding. (4) An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation: (a) may be made by a party to the instrument, and (b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission. (5) This section does not apply to criminal proceedings before the Commission in Court Session. 42 The operation of s 169 was considered by the Full Commission in Re State Personal/Carer's Leave Case (1998) 84 IR 416. It was there held that s 169 was "one of a number of provisions which run through the Industrial Relations Act which together form a scheme designed to incorporate Anti-Discrimination Act concepts into the industrial jurisdiction". Those concepts were considered to be of "fundamental importance" to the operation of the present statutory scheme. The reference to the "principles" contained within the Anti-Discrimination Act in s 169(1) was considered to require the Commission to have regard to the express provisions of that Act. This would, in our view, plainly include provisions such as s 24(1)(b) of the Anti-Discrimination Act, encompassing notions of indirect discrimination. 43 As was expressly acknowledged by the Full Bench in Re Equal Remuneration Principle (2000) 97 IR 177 it is a "fundamental human right" that every person is entitled "to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex, race, or age, and with a right not to be discriminated against by reference to such considerations". Further, the Full Bench observed (at [43]): This right is reflected in various statutory provisions in New South Wales. The fixing of a rate of pay for, or the payment of a wage or salary to, a woman where that rate of pay, salary or wage has been fixed differently because of the woman's sex is presumptively an infringement of her human rights and inconsistent with the provisions of the 1996 Act. 44 It is trite that statutory construction requires that the ordinary meaning of the words of a statute be given effect, having regard both to context and the underlying purpose or object of the statute. The statutory provisions which were considered of particular relevance to issues of equal remuneration in Re Equal Remuneration Principle were ss3(f), 19, 21, 23 and 169 of the Act. Those provisions, were said to be provisions which "exemplify human rights and human rights concepts and which protect or enforce such rights". It was emphasised the "special responsibility of courts and tribunals, in construing such legislation, to take account of and give effect to the statutory purpose whether found in a statutory object or otherwise". In our view, the respondent's approach does not accord with such the broad and purposive approach required to the construction of s 169(4). 45 As was stated in Re Equal Remuneration Principle at 191, [47]: 47 As a result of a number of developments, including the 1973 State Equal Pay Case, steps subsequently taken by award parties to remove discriminatory award provisions by agreement and, more recently, as the result of reviews of awards conducted by the Commission under s19, directly discriminatory award provisions are increasingly difficult to find. Indirectly discriminatory provisions are, of course, more difficult to detect on the face of an award. Nevertheless, it cannot be doubted that efforts to remove such award provisions have been and continue to be made. Those steps accord with the requirements of s169 of the Act, which obliges the Commission to have regard to the principles contained in the Anti-Discrimination Act 1977 in carrying out its functions . (emphasis added) 46 Whilst it is clear that to be capable of variation pursuant to s 169(4) the unlawful discrimination to be removed must "arise from" the relevant provision in the industrial instrument, this does not necessarily confirm the respondent's approach. Indirect discrimination by definition requires consideration be given to the surrounding circumstances of an "aggrieved person" and to whether or not their capacity to comply with a "requirement or condition" with which "a substantially higher proportion of persons of the opposite sex" are able to comply, "is reasonable having regard the circumstances of the case". It is discrimination of that kind which had been identified by the Administrative Decisions Tribunal and which will be the subject of contention before the Full Bench should it be determined these proceedings continue. 47 However, these observations need to be tempered somewhat by the observations made by the Full Bench in the State Personal/Carer's Leave Case. The Commission there considered that the requirement to take into account the express provisions of the Anti-Discrimination Act did not detract from the general discretion of the Commission in exercising its functions. The Full Bench held that the retention of this discretion permitted the Commission "to give effect to the principles of the Anti-Discrimination Act in a way appropriate to the circumstances of each case before it". In our view, these observations apply equally to the operation of s 169(4). As such, even if the Federation had demonstrated that the precondition in s 169(4) existed, the Commission still retains a discretion as to whether it would reopen and vary the award. 48 In considering this discretion under s 169(4), it is necessary for the Commission to have regard to all the circumstances of the case. An important consideration to which the Commission would have regard is the conduct of the parties to the making of the award and the general policy reflected in s 16 and s 17 of the Act that awards once made should generally be permitted to run their term. It will be particularly relevant to have regard to whether the award sought to be varied was made as the result of an application which proceeded before the Commission by consent. We would concur with the observations of Wright J, President in Re Corrections Health Nurses (State) Award (1999) 90 IR 235 that it is "essential" for the proper operation of the Commission's functions in award making, and in particular the wage fixing principles, for the Commission to "ensure … the strict observance of agreements and undertakings given by parties". 49 We consider that other significant features to the exercise of that discretion would be the timing of the application, the extent to which the nominal term of the award had lapsed and the likely time at which any variation made pursuant to an application is likely to come into effect. One matter of particular significance is the requirement under s 146(2) to have regard to the public interest. 50 However, in the present circumstances, we consider that it is appropriate to reject the application of the respondent to dismiss or stay the proceedings and permit the hearing of the substantive application to go ahead. Whilst it is well settled that it is desirable for a tribunal to exercise its discretion, in an appropriate case, to prevent ill founded proceedings, proceeding to hearing (see Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8, Virtue v New South Wales Department of Education (1999) 92 IR 428), we are not satisfied that this is an appropriate case for the exercise of such a discretion. 51 Although the Commission is not bound by it, the decision of the ADT has highlighted the potential existence of unlawful discrimination in an award of this Commission. In our view, it would be inappropriate in the light of the early stage of these proceedings and the incomplete evidentiary material for the Commission to draw any conclusion as to the likely success of the application. Further, it is not clear whether any (and if so, which) wage fixing principles are relevant to the current application. Our decision on this preliminary point should not be taken as any indication as to the merits of the substantive application. 52 In all the circumstances, we dismiss the motion by the respondent, save that the conditions of any applicable "no extra claims" provision shall apply to the extent of precluding any decision on the Federation's application prior to the expiry of the period specified in that provision.

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