Teachers (Non-Government English Colleges) (State) Award [2003] NSWIRComm 20 - NSWIRComm 2003 case summary — Zoe

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Teachers (Non-Government English Colleges) (State) Award [2003] NSWIRComm 20

[2003] NSWIRComm 20

Industrial Relations Commission (NSW)|2003-07-01|Before: Grayson DP, Fisher P, Varnum DP, Mr P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Grayson DP, Fisher P, Varnum DP, Mr P

Catchwords

08/09/2002
08/12/2002
08/13/2002
08/14/2002

Source

Original judgment source is linked above.

Catchwords

08/09/200208/12/200208/13/200208/14/200208/16/200210/14/200210/28/2002 DATE OF JUDGMENT: 05/09/2003

Judgment (180 paragraphs)

[1]

CITATION : Teachers (Non-Government English Colleges) (State) Award [2003] NSWIRComm 20 PARTIES : NSW/ACT Independent Education Union Employers First FILE NUMBER: IRC 4201 of 2001 & IRC 2611 of 2002 CORAM: Grayson DP Application by union for new award - application by employers for new award - wage-fixing principles - special case principle - dormant state award - de facto operation of federal instruments - operation of federal industrial instruments - obligation to ensure award operates fairly and reasonably - weight to be given to consent arrangements - inadvertant oversight - objective distinction between face-to-face tuition and supervision of self-access study - significance of casual employment with non-government English colleges - appropriateness of comparison between actual movements in rates of pay and movements which would otherwise occur by reason of State Wage Case decisions. CATCHWORDS : Held, special case made out - union claim granted in part - employer claim refused - rates of pay increased progressively throughout life of new award - ceiling on experience points raised. Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED : Commission for Children and Young People Act Industrial Relations Act 1996 Ombudsman Amendment (Child Protection and Community Services) Act Carpenters and Joiners and Bricklayers, Construction (State) Award, Re [1968] AR (NSW) 32) Corrections Health Service Nurses' (State) Award, Re (No 2) (2002) 112 IR 402 Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards, Re (No 2) (1993) 52 IR 243 Employers First v NSW/ACT Independent Education Union and Another (2002) 115 IR 8 Equal Remuneration Principle, Re (2000) 97 IR 177 Hotel &c Employees (State) Award, Re (2001) 111 IR 393 Metal, Engineering and Associated Industries Award, Re 1998 - Part 1 (2002) 110 IR 247 Operational Ambulance Officers (State) Award, Re (2001) 113 IR 384 CASES CITED : Pastoral Industry (State) Award, Re (2000) 104 IR 168 Public Hospital Nurses (State) Award, Re (2002) 115 IR 183 Social and Community Services Employees (State) Award, Re (2001) 113 IR 119 State Wage Case 1994 (1994) 57 IR 1 State Wage Case 2001 (2001) 104 IR 438 State Wage Case 2002 (2002) 114 IR 81 Teachers (Non Government Pre Schools) (State) Award, Re [2001] NSWIRComm 335 Teachers (Non-Government Schools (State) Award and Other Awards, Re (Unreported, Fisher P, Sweeney, J and Varnum DP, 17 August 1990 Transport Industry (State) Award, Re (1996) 95 IR 126 HEARING DATES: 08/07/2002; 08/09/2002; 08/12/2002; 08/13/2002; 08/14/2002; 08/16/2002; 10/14/2002; 10/28/2002 DATE OF JUDGMENT: 05/09/2003

[102]

93 In Nurses at [11] and [12] the Commission said: We have taken the view that in considering each of the claims by the Association we should test it against what we consider to be the relevant principle. In that respect we note that the most recent authoritative discussion on the nature of a special case was that by the Full Bench in Re Social and Community Services Employees (State) Award (2001) 113 IR 119 and by a subsequent Full Bench in Re Operational Ambulance Officers (State) Award (2001) 113 IR 384. In Re Social and Community Services Employees (State) Award the Full Bench said: [22] As Mr Reitano for the Union argues, the present Special Case principle is not relevantly different from that found in the State Wage Case - May 1991 (1991) 36 IR 362 which was considered in Re Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2 ) (1993) 52 IR 243. In the latter decision the Full Commission held at (376-377): "in our view, the special case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and the submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed. Some of the cases brought under the special case provision have relied, it is true, on the Work Value Changes principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in the workplace reform of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wage increases beyond those normally allowable under the principles. On a number of occasions such applications have been approved by the Commission. In some of them the amounts of wage increase have been agreed by the parties but in others they have not, and the Commission has made an arbitrated decision in the matter. In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription… … We therefore find that the applicants are entitled to bring their case under the special cases provisions of the principles. That, of course, is not the end of the matter. The Full Commission must decide whether, on the whole of the material before it, and bearing in mind the respondent's opposition, the claim should in whole or in part succeed, and, if so, what increase should be awarded and what conditions, if any, should be prescribed. But we repeat our view that, in accordance with the principles, it is entirely appropriate for this claim to be heard and for the Commission to grant the claim in whole or in part if considered justified on the merits. It is also entirely appropriate, if it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increase for employees in question took effect, and changes in money values which have occurred since that time or are forecast during the prescribed life of the award to be made. [23] Further in Re Transport Industry (State) Award (1996) 95 IR 126 a Full Bench of the Commission observed (at 130-131): "Mr Warren submitted that the Carpenters case ( Re Carpenters and Joiners and Bricklayers, Construction (State) Award [1968] AR (NSW) 32) principle is irrelevant to the determination of a special case; but the principles of wage fixation operate, in effect, as a code which provides all the principles of application. We are unable to accept this view. The approach adopted by the Full Commission in the Crown Employees case ( Re Crown Employees (Administrative and Clerical Officers) (State) Award (No 2) (1993) 52 IR 243) was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all." [24] Thus it can be seen, as in our view Mr Reitano correctly submits, that strict compliance with the wage fixing principles generally or with the work value principle and structural efficiency considerations in particular is not required where as here a case is advanced as a special case. [25] in saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe, again as Mr Reitano submits, that the present Special Case unlike its 1990 predecessor does not require that cases be considered "in accordance with the structural efficiency and other relevant principles". It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application. … [312] We are persuaded that this is a special case that warrants the granting if not in whole then in significant part, of the Union's claim. In that regard we note in addition to what has been observed earlier that a Full Bench of the Australian Industrial Relations Commission recently expressed a view as to what constitutes a special case within the meaning of the wage fixing principles. In Metal, Engineering and Associated Industries Award 1998 - Part 1 (2002) 110 IR 247 at 266-267 the Full Bench said: "In our view, 'special case' as used in Principle 10, is not a self defining term. The identification of a special case is reserved to a Full Bench level of determination. It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary. The circumstances of the Award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter, the special case requirement entails that the AMWU has the task of satisfying the Commission that there are sufficiently compelling reasons for awarding, as minimum rate conditions to apply across the industries covered by the Award, the substantive changes that it seeks. Should the AMWU satisfy that requirement, it will, in our view, have made out a special case in the circumstances applying the Award". [313] At least for the purpose of these proceedings we do not consider the approach set out in that decision is materially different to the approaches laid down in the 1993 Crown Employees case and the 1996 Transport Industry case. Particular reference has, however, been made to the unique history of this award and we note in the recent Full Bench decision in Re Corrections Health Service Nurses' (State) Award (No 2) (2002) 112 IR 402 at par 31, that one of the factors which led to the Full Bench determining a special case had been established was the history of industrial regulation of the relevant employees. After referring to the decision in the Social and Community Services Employees case and other decided cases, the Full Bench in R e Operational Ambulance Officers (State) Award stated: [168] A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of the case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors).

[121]

111 In so doing, the Full Bench at p5 of the decision 29 May 1992 Print K3032 said this: In relation to award no.2 there is a disagreement between the union and the employers as to the final rate. The argument centres on $13 per annum, but in reality reflects a fundamental difference between the parties as to the appropriate relationship with external awards in the employers' view also proper internal relationships. The ITF proposes a final rate of $38,950 this being generally accepted benchmark rate for four year trained teachers on the maximum in the compulsory education sector. It is the rate which also applied to Level Academics and Related Staff (Salaries) Award 1987. The employers on the other hand propose a final rate of $38, 963. In proposing the application of the benchmark rate for ELICOS teachers the ITF takes the view that the skills, responsibilities and knowledge of an ELICOS teacher at the final point on the incremental scales is the same as or similar to that required of a four year trained teacher on the maximum, and a Level A academic on the maximum. The employer disputed this view and submitted that neither the skills, responsibility or knowledge required of ELICOS teachers is the same as classroom teachers, and a more appropriate comparison is with the Metal Industry Award… The skills and responsibility exercised by ELICOS teacher was the subject of evidence. It is apparent that various witnesses for the employers to award no.2 in arguing that ELICOS teachers could be distinguished from teachers in the compulsory education sector, relied in the main on distinctions concerning class size and teaching load. In our view all the evidence before the Commission warrants the conclusion that at least on the maximum it is not unreasonable to accept that overall the skills, responsibility and knowledge exercised by an ELCIOS teacher is comparable with a teacher in the compulsory education sector or a Level A academic on the maximum… Indeed there is no sufficient consistency with teachers in our view to warrant the direct alignment of any but the top increment rate. Our view is reinforced by the significant difference in incremental patterns and the differing qualification requirements and conditions which apply to ELICOS teachers.

[165]

148 In that case her Honour Schmidt J said this at [394] to [401]: The difficult question which the Commission must come to grips with here, is how the demonstrated undervaluation of this work is to be remedied. I am well satisfied that a case has been made out for significant wage increases and that a fair assessment of proper rates for the teachers employed under these awards, cannot be made in a context where rates paid to other similarly qualified and experienced teachers is ignored. Indeed in their final submissions the employers conceded the necessity of such an approach, given the terms of the Work Value principle, but still urged that the same rates would not be awarded as those paid to teachers employed in the schools, even if the view were reached that wage increases were warranted. In 1990 the parties agreed that the nexus between these awards and those applying to schools should no longer operate. Of course, that was at a time when rates for teachers employed in long day care were agreed to be 4% higher that those of schools teachers and those of preschool teachers the same as those applying to schools. That position was abandoned by the employers in 1999 and now they seek rates, which over time, will be 26% lower than those for teachers employed in schools. I am utterly convinced on the evidence that such a differential can not be awarded. It would not result in fair and reasonable conditions of employment for these teachers. Nor, however, have I been able conclude on the evidence, that precisely the same rates should here be awarded, as those paid to teachers employed in Catholic and Government schools. I do not exclude the possibility that a case for such rates could be made out, but have taken the view that it would require a closer examination of the basis upon which increases for such teachers were agreed under the awards being relied upon, together with a more detailed investigation of the similarities and differences in the work of the two groups than was here undertaken. That is not to say that I accept the views expressed by employer witnesses as to the nature of the differences in the work of teachers employed in the early childhood and those employed in schools. I am convinced that no proper basis for such views was demonstrated. Nevertheless, I am not convinced that on the evidence here led, the rates claimed can be awarded. This conclusion was unavoidable, given the evidence led and the existing legislative scheme, which has given rise to the current award position. This claim was advanced in circumstances where salaries paid to teachers with similar qualifications and experience, has over recent years fragmented markedly, depending upon by whom they are employed and in what sector of the teaching industry. The legislative regime altered significantly in 1992, with the repeal of the 1940 Act and the enactment of the 1991 Act, itself repealed in 1996, when the Act was enacted. The Wage Fixing Principles fixed under that legislation have also altered significantly over that time. As was observed in Re Transport Industry - Waste Collection and Recycling State Award (Unreported; Wright J President, Hungerford J and Patterson C; 30 January 2001) at p8: As is clear from these references to the background to the making of the Principles, they developed because of the objectives of both the Industrial Relations Act 1996 that there should be a "process of devolution of industrial affairs to the parties" and the recognition that, where parties are in agreement as to the terms of their industrial arrangements, the Commission should be "less prescriptive" and "less interventionist". The end result for teachers has been wage differentials, not only between the two groups of teachers here under consideration, but also within those groups themselves, there being evidence of agreements, including enterprise agreements approved under the Act, providing for wage increases, having been reached by the Union with some employers covered by these awards. Wage differentials now also exist between Government and non-Government school teachers; teachers employed in other non-governmental schools and those employed in other early childhood services. In this State there are now many different rates of pay applying under various industrial instruments to teachers employed in schools, preschools and long day care centres. What agreements were reached in relation to these various rates of pay was in the main unclear on the evidence. It is thus not possible to ascertain precisely how, or why, the various rates were fixed, although it is undoubted that current rates of pay reflect various agreements reached between the relevant parties over the years and in some cases, decisions of the Commission. What such agreements comprehend is difficult to say. It is entirely possible, and no doubt likely, that they reflect wage increases agreed having regard to productivity improvements and accepted work value increases. While there was no evidence about this, they could also have included a whole host of other matters, such as attraction and retention payments, an issue which arose here. On the evidence, it is, however, not possible to know or helpful to speculate. As I have noted there are also significant differences in award conditions not explored in these proceedings. In those circumstances, I have refrained from the undeniably attractive option of simply awarding the rates claimed, as reflecting the rates paid to many school teachers, having in mind the evidence of the similarities in the work performed by these teachers, compared to those employed in schools, as well as their respective responsibilities. The fact that some teachers employed in preschools also already receive the rates here claimed under the awards which apply to them, made this even more attractive, but there was no evidence led as to that work or the circumstances in which that agreement was made. The end result is that the rates fixed by these awards, will increase significantly during the term of these awards, but will not exceed those paid to teachers in schools. It may be that in other proceedings a different result could emerge in future. I am satisfied that this is a proper result on the case and the evidence here advanced.

Teachers (Non-Government English Colleges) (State) Award [2003] NSWIRComm 20

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Judgment (180 paragraphs)

Cases Cited (17)