Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004 and other awards [2003] NSWIRComm 476

APPLICANT Mr M Kimber of senior counsel Ms C Howell of counsel Instructed by: New South Wales Independent Education Union LEGAL REPRESENTATIVES: RESPONDENTS Mr J Murphy of counsel Instructed by: Catholic Commission for Employment Relations

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J Vice-President SAMS DP REDMAN C

Matters IRC03/2911, IRC03/3543, IRC03/3544 TEACHERS (ARCHDIOCESE OF SYDNEY AND DIOCESES OF BROKEN BAY AND PARRAMATTA) (STATE) AWARD 2004 AND OTHER AWARDS Applications by the New South Wales Independent Education Union for special case increases in rates of pay for teachers and principals employed in Catholic Schools and employees in related classifications. DECISION OF THE COMMISSION [2003] NSWIRComm 476

1 These are applications for seven new Awards filed by the New South Wales Independent Education Union. The applications seek increases in salaries and allowances of 25 per cent, from 1 January 2004, for principals, teachers and advisors in the Catholic school sector in New South Wales. A claim was also made by the Union for two additional steps in the teacher salary scale, with consequential increases to promotional positions and allowances.

2 While the applications name various schools and colleges as respondents to the proposed Awards, the respondents' case was effectively carried by the Catholic Commission for Employment Relations. Mr M Kimber of senior counsel, with Ms C Howell of counsel, appeared for the Union and Mr J Murphy of counsel appeared for the respondents.

3 The proposed Awards seek to replace existing awards, which expire in December 2003. The coverage of the Awards extends to around 12,800 teachers in systemic schools, conducted by dioceses and approximately 2,000 teachers in Catholic independent schools operated by religious orders.

4 The applications were filed in June 2003 and were the subject of the processes under the then Practice Direction No. 8 'Major Industrial Cases'. As the proposed Awards plainly arise for consideration under the Special Case Principle of the State Wage Principles (2003) 121 IR 446, the applications have been before the Full Bench of the Commission. It is to be noted that the Commission conducted inspections at St. Jaochim's Primary School, Lidcombe and Trinity College, Auburn and Sams DP heard the oral evidence on behalf of the Full Bench. These views have assisted in our deliberation.

5 The parties helpfully provided a detailed and comprehensive agreed statement of facts. The statement plainly demonstrated a large measure of agreement between the parties as to the nature and extent of changes since 1990 which have affected the value of the work of teachers, principals and advisors in the Catholic school system. We commend them for the approach they have adopted to the issues raised by these applications.

6 The general propositions agreed to by the parties were that: 1) The nature of schooling has undergone a significant shift as the world has moved from an industrial economy to a knowledge economy. This has led to changes in the processes of the work of teachers. These changes have been influenced by broader societal developments which have occurred over this time.

2. The Commission has not considered the work value of the teachers covered by the relevant awards since 1990 when wage increases were granted on the grounds of structural efficiency and "to a lesser extent" changing work value: see Re Teachers (Non Government Schools) (State) and Other Awards (Industrial Commission of New South Wales in Court Session, unreported, 17 August 1990 at p23) ("the 1990 Special Case"). 3) The wage increases that Catholic school teachers have received since 1990 were not intended to, and have not served to, compensate teachers for the work value changes that have occurred in the last thirteen years.

4. A range of educational policies have been implemented over the last thirteen years to take account of he changes in societal attitudes and to provide a framework for school to respond to these issues. This has gone some way to address the issues but has not taken away from teaching becoming an increasingly complex and demanding activity.

5. At a broad level, schools and teaching have been markedly affected by the major changes in Australia's technological, employment and economic profiles, and by he associated changes in labour markets and skill requirements.

7 It was also agreed that the demonstrated changes in work value met the requirements of the work value principle under the State Wage Case Principles and that a special case had been demonstrated.

8 In support of the agreed statement of facts, extensive documentation and uncontested evidence was advanced by the parties.

9 Uncontested evidence was received from: 1) Elizabeth Latham (Principal of St Joseph's Primary School Merriwa) 2) James Anthony D'Arbon (an international teaching congregation of the Catholic Church, Marist Brothers) 3) Robyn Ewing (Associate Professor, Faculty of Education and Social work - University of Sydney)

4. David McRae (Educational Consultant) 5) Geoffrey Paul Riordan (Associate Professor, Director Teaching Education, University of Technology Sydney) 6) Patrick John Lee (Deputy General Secretary of the New South Wales Independent Education Union) 7) Richard Francis Shearman (General Secretary of the New South Wales Independent Education Union) 8) Elizabeth Alderton (Assistant Religious Education Co-ordinator at the Hurstville Campus of Bethany College) 9) Bernadette Baker (Teacher appointed as Co-ordinator 2 at St John Vianney's School, Fairy Meadow) 10) Katherine Gee (Assistant Principal at Sacred Heart Catholic Primary School, Mona Vale)

11. Sean Grace (Principal of St Joseph's Primary School Moorebank) 12) Mark Gronow (Director of Studies at St Augustine's College at Brookvale) 13) Larry Grumley (English Co-ordinator at Catherine McAuley High School, Westmead)

14. George Kelen (Science Co-ordinator at St Ursula's College)

15. Paul Menday (Principal of Bede Polding College, South Windsor) 16) Lynne Prisk (Assistant Principal at McCarthy Catholic College, Tamworth)

17. Lyn Renno (Creative Arts Co-ordinator, Griffith Catholic High School) 18) Bernard Ryan (Classroom teacher at St Francis Xavier's Primary School, Arncliffe) 19) John Ross (Learning Technology Co-ordinator at Gilroy College, Castle Hill) 20) Kim Stutchbury (Teacher of Design and Technology, Wollongong Catholic Education Office at St Joseph's Catholic High School, Albion Park)

21. David Towson (Teacher at Marist College North Shore).

10 Uncontested evidence on behalf of the respondent was received from: 1) Peter Michael Turner (Regional Director of Schools, Southern Region, Archdiocese of Sydney) 2) Brian Thomas Roberts (Principal of Christian Brothers' High School, Lewisham) 3) Sister Mary Ellen O'Donoghue (Principal of Mount St Joseph's, Milperra)

4. William John Walsh (Director of School Resources) 5) Caroline Benedet (Parent Community Educator, Catholic Education Office, Inner Western Region) 6) Michael John Hough (Professor of Management and Professor of Educational Leadership, Graduate School of Business and Professional Education, University of Wollongong) 7) Brian Croke (Executive Director of the Catholic Education Commission New South Wales)

11 The following witnesses were called to supplement their witness statements: 1) Professor Stephen Dinham (Professor of Teacher Education, Pedagogy and Professional Development, School of Education, University of New England). 2) Glynis Catherine Jones (Education consultant - New South Wales Independent Education Union) 3) David Parnell (Special Education Support Teacher at Casimir Catholic College) 4) Stephanie Hutchens (English Co-ordinator at St. Francis Xavier's College, Hamilton) 12 It is obviously not possible, for the purposes of this decision, to summarise the entirety of the evidence put before the Full Bench. We do, however, accept that the largely uncontested evidence generally supports the contentions of the parties and the agreed statement of facts.

13 Detailed and lengthy written submissions were filed by the parties.

14 The Union advanced the following general propositions: a) There have been very substantial and wide ranging changes to the nature of teaching work in the schools covered by the applications over the past decade; b) Such change has rendered the work of teaching significantly more challenging, skilled and complex and has also significantly increased the workload of teachers; c) As a result of the change that has occurred, the remuneration currently paid to teachers does not adequately reflect the nature or value of that work; d) There is currently a shortage of teachers which shows every sign of deteriorating sharply unless decisive steps are taken to address the situation and the shortage is symptomatic of the undervaluation of teachers' work; and e) The fixation of wage rates for teachers that properly reflect the value of their work is not only in the public interest per se (and mandated by section 10 of the Act) but also because such an outcome is likely to contribute to the resolution of the teacher shortage issue either by encouraging more quality students to take up teaching as a career and/or by dissuading able teachers from giving up the profession.

15 The respondents' submissions can be summarised as follows: a) The respondents propose that the rates of pay contained in the Awards which are the subject of these proceedings should be reviewed to take into account: i) changes to work value (since 1990); ii) special issues which have arisen (since 1990); and iii) the capacity of the respondents to fund an increase in the rates of pay. b) The respondents wished to maintain the existing parity between teachers' salaries in Catholic schools and government schools. The respondents preferred outcome is that an equal percentage salary increase should be applied across each step of the teachers' salary scale. c) However, if the Commission takes the view that the larger increase should be awarded to both government and Catholic school teachers at the top of scale relative to other teachers, the respondents are of the view that the increase should be in the form of an additional step to apply from a future date.

d) The rates of pay of Co-ordinators, Assistant Principals and Principals do not appropriately compensate them for their level of responsibility and skills. In the circumstances, the respondents consider that their rates of pay should increase by a larger percentage than any general increase awarded to teachers arising from this Special Case.

16 The parties agreed that an appropriate datum point for assessing work value changes for employees under the proposed Awards was the 1990 Special Case. Salary increases since that time have been: Increase Date of effect (percentage /$) 3% 17 August 1990 1.3% 28 January 1991 2.5% 12 August 1991 3% 13 December 1993 0.7% 1 November 1994 5% 12 February 1995 6% 27 August 1996 $11.00 3 February 1997 4% 1 July 1997 3% 1 July 1998 3% 1 January 1999 4% 3 April 2000 3% 1 July 2001 4% 1 July 2002 5% 1 January 2003 $300.00 1 July 2003

17 The parties agreed that the above increases were not related to changes in the nature of the work, skill or responsibility required or the conditions under which the work is performed.

18 In this context we are persuaded to adopt the approach pressed upon us by the parties as to the significance of the 1990 Special Case. We adopt that case as the starting point for considering the nature and extent of the work value changes in these proceedings.

19 Both parties agreed that a significant increase in salaries was justified on work value grounds and that these proceedings constituted a special case for the determination of an appropriate increase. However, there was no agreement as the quantum of increase which could be justified by the nature and extent of the identified work value changes. Nevertheless, having regard to the extensive material before the Full Bench, we agree, in general terms, that a significant increase in salaries and allowances is justified.

20 It should be emphasised that the changes identified in the evidence not only included the changes in curriculum and the methodology of teaching, but have involved major external factors which have directly or indirectly, impacted on the teaching profession. New child protection legislation is one example. Indeed, on the evidence before us, it may be readily concluded that the Union has made out a very substantial case demonstrating factors which well and truly make out a case under the Work Value principle.

21 We are mindful of the proceedings before another Full Bench of this Commission which is considering significant increases for teachers in the Government sector (Matter IRC03/3749) ("the Government schools case"). In this regard we note the commitment of the parties (para 79 of the Agreed Statement of Facts) to parity with salaries paid in the Government sector. This commitment was emphasised by Mr Murphy and Mr Kimber during submissions on 12 December 2003.

22 We also note the employers' submission on capacity to pay, in which it was put that, without an appropriate level of State and Federal Government funding, any increase in salaries would need to be met by: i) an increase in school fees; ii) saving income from other areas and/or iii) reallocation of existing funding. 23 That being said, we are satisfied that a special case has been made out in these proceedings: See Re Social And Community Services Employees (State) Award (2001) 113 IR 119, Operational Ambulance Officers (State) Award (2001) 113 IR 384, Re Pastoral Industry Award 104 IR 168 and Re Public Hospital Nurses (State) Award (2002) 118 IR 336.

24 In final submissions on 12 December 2003, both parties submitted that it would be appropriate for the Commission to award an interim increase for all employees to operate from 1 January 2004.

25 This submission was pressed primarily on the grounds that; firstly, teachers in Catholic schools have not had a substantial salary increase since 1 January 2003; secondly, the extent of the parties' agreement on the significant changes in work value and, thirdly, that for understandable reasons, it was unlikely that the Commission would be in a position to deliver judgment in this case prior to 1 January 2004.

26 The Union sought a 10 per cent interim increase, while the respondent did not propose an amount. It was again emphasised that it would be desirable to maintain parity with any interim increase awarded by the Full Bench in the Government schools case.

27 We have been most impressed by the level of agreement between the parties in this matter and the effect it had on the efficient and speedy conduct of the proceedings.

28 That approach was also reflected in relation to the application for interim relief, where both parties acknowledged that if any impediment arose to the award of an interim increase in the Government schools case, that such an impediment should not detract from the obvious merit in awarding an interim increase in the Catholic school sector.

29 In deciding whether to award an interim increase, we note that such an outcome is not without precedent. See Re Crown Employees (Teachers - Department of Education Award) [1970] AR 345 at pages 348-349; Re Crown Employees (Teachers) Awards [1980] AR 127 at pages 130-133 and Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRC 325 at para 124. We consider that the requirements for the making of an interim Award have been satisfied, particularly as the Full Bench has before it all the evidence advanced by both parties. We note in this respect, our earlier observations as to the merits of the application.

30 We determine that, in the present circumstances, and having regard for the substantial degree of agreement as to the work value changes of teachers, principals and advisors under the proposed Awards, that it is appropriate to grant an interim increase in salaries and allowances as sought.

31 We have decided to make an interim award for six months to provide for an increase in all salary rates under the Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004, Principals (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004 and Advisers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004. The increase shall be 5.5 per cent and shall apply from the beginning of the first pay period to commence on or after 1 January 2004.

32 We make the following orders and directions: 1. Pursuant to s16(4) of the Industrial Relations Act 1996 the Commission makes the Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Salaries Interim Award 2004, Principals (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Salaries Interim Award 2004 and Advisers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Salaries Interim Award 2004.

2. The Interim Awards shall provide for an increase of 5.5 per cent in all salary rates for classifications and areas of employment, the subject of the applications before us under Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004, Principals (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004 and Advisers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004. 3. The Interim Awards shall apply from the beginning of the first pay period to commence on or after 1 January 2004 and shall remain in force for a period of six months.

4. The parties are directed to file and serve within 28 days of today a document setting out the terms of the Interim Award to give effect to this Decision. In the event that there is any remaining disagreement about the terms of the Interim Awards the areas of disagreement are to be identified together with the respective positions of the parties.

5. The terms of the Interim Awards shall be settled by Sams DP in proceedings before his Honour at 2.00 pm on Monday, 2 February 2004.

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