Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4 - NSWIRComm 2001 case summary

Industrial Relations Commission (NSW)|2001-02-14|Before: Walton J, Wright J, Schmidt J, Boland J, Mr J

CITATION : Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4 APPLICANT: Catholic Commission for Employment Relations PARTIES : RESPONDENT: New South Wales Independent Education Union FILE NUMBER: IRC00 5370; 5371; 5372 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Enterprise agreements - applications for approval by Catholic Commission for Employment Relations - non-prescriptive conditions - provisions dealing with Catholic values and objectives of Catholic Schools - no net detriment test - application of the Anti-Discrimination Act - enterprise agreements approved Anti-Discrimination Act 1977 s56D LEGISLATION CITED : Industrial Relations Act 1996 s35 Industrial Relations Commission Rules 1996 CASES CITED : Re Review of the Principles for Approval of Enterprise Agreements (unreported, Wright J President, Walton J Vice President, Schmidt J, Boland J and Redman C, 22/12/2000) HEARING DATES: 11/24/2000 DATE OF JUDGMENT: 02/14/2001

APPLICANT: Mr J V Murphy of counsel for the Catholic Commission for Employment Relations SOLICITOR: Mr D Cudmore LEGAL REPRESENTATIVES: Catholic Commission for Employment Relations

RESPONDENT: Ms Mathews New South Wales Independent Education Union

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Walton J, Vice-President 14 February 2001

TEACHERS - ST LUCY'S SCHOOL LTD ENTERPRISE AGREEMENT 1999. APPLICATION BY THE CATHOLIC COMMISSION FOR EMPLOYMENT RELATIONS FOR APPROVAL OF AN ENTERPRISE AGREEMENT

ENTERPRISE AGREEMENT FOR TEACHERS EMPLOYED BY ST EDMUND'S SCHOOL FOR THE BLIND AND VISUALLY IMPAIRED. APPLICATION BY CATHOLIC COMMISSION FOR EMPLOYMENT RELATIONS FOR APPROVAL OF ENTERPRISE AGREEMENT.

ENTERPRISE AGREEMENT FOR TEACHERS EMPLOYED BY MOUNT ST JOSEPH MILPERRA LTD. APPLICATION BY CATHOLIC COMMISSION FOR EMPLOYMENT RELATIONS FOR APPROVAL OF ENTERPRISE AGREEMENT

1 This decision concerns applications by the Catholic Commission for Employment Relations ("the CCER"), pursuant to s34(1) of the Industrial Relations Act 1996 ("the Act") for the approval of three enterprise agreements. The agreements are entitled the "Teachers - St Lucy's School Ltd Enterprise Agreement 1999", the "Enterprise Agreement for Teachers Employed by St Edmund's School for the Blind and Visually Impaired" and the "Enterprise Agreement for Teachers Employed by Mt St Joseph Milperra Ltd" ("the agreements"). 2 The agreements bind the Independent Education Union ("the IEU") and St Lucy's School Ltd, the Trustees of the Christian Brothers, St Edmund's School for the Blind and Visually Impaired and Mount St Joseph Milperra Ltd ("the schools"). 3 The agreements apply to teachers employed by the schools, save for teachers of music or other creative arts employed by Mount St Joseph Milperra Ltd. The conditions of employment of those teachers are regulated by the Teachers (Catholic Independent Schools) (State) Award ("the award"). Generally speaking, the agreements do not purport to alter the conditions of employment found within that award. Rather, the agreements supplement the award by provisions which concern the mission or objectives of the schools, the professional development of teachers and some particular employment matters. 4 The agreements have many provisions which are substantially in the same terms. In consequence, and upon application by the parties, the matters were joined for the purposes of hearing the respective applications. 5 The applications were supported by three affidavits of Mr Paul Davies, the Professional Assistant to the Executive Director of the CCER, and the requisite documentation required to support applications made pursuant to Division 2 of Part 2 of the Act.

The Evidence 6 In his affidavit, dated 31 October 2000, Mr Davies dealt primarily with the statutory requirements for the approval of an enterprise agreement. He stated that the agreement complied with the statutory requirements of both the Act and the Anti-Discrimination Act, that the agreement on balance did not provide a net detriment to employees, that the parties to the agreement understood the effect of the agreement, that no party entered into the agreement under duress and that the agreement complied with the principles established by the Full Bench of the Commission in Re Principles for Approval of Enterprise Agreements (1996) 70 IR 437. 7 In his affidavit, dated 2 November 2000, Mr Davies deposed that the schools had previously brought applications for approval of enterprise agreements ("the former enterprise agreements"), which applications were in relevantly different terms to the current applications. He identified that the Commission had refused to approve the applications in a decision given on 23 December 1999 (re Teachers - St Lucy's School, Wahroonga Enterprise Agreement 1999 (unreported, McKenna C, Matter Nos. IRC6525, 6526 and 6528 of 1999, 23 December 1999)). 8 Mr Davies also gave evidence that the agreements provided benefits to employees. He referred to such matters as the establishment of arrangements for a co-operative partnership within the Catholic community, the provision of improved certainty and clarity as to the expectations of the schools regarding teachers, the establishment of professional development opportunities, alternative remuneration packaging and a structured and systematic dispute avoidance and resolution procedure. There were also further specific benefits which were identified as flowing to teachers in some of the schools such as improved long service leave benefits. 9 The third affidavit of Mr Davies, deposed on 24 November 2000, essentially concerned changes which had been made to the former enterprise agreements by the applicant in consequence of the decision of Commissioner McKenna of 23 December 1999, together with some additional information concerning provisions of those former agreements. 10 Mr Davies also deposed that in a settlement reached between the CCER and IEU in relation to teachers' salary negotiations in April 2000, it was agreed that the parties would establish the facilitative clauses (now proposed in the agreements) by means of applications for the approval of enterprise agreements.

The Submissions 11 Mr J V Murphy of counsel, who appeared for the CCER, indicated that applications for the approval of enterprise agreements (albeit in a different form to the present applications) had earlier come before Commissioner McKenna and been rejected due to certain concerns the Commissioner expressed, particularly in relation to the operation of the 'no net detriment test', and the inclusion in the agreement of provisions related to the acknowledgement of the 'Catholic Ethos'. He submitted that the applications presently before the Commission had been amended in an effort to take account of matters raised by the Commissioner. 12 Mr Murphy submitted that the provisions of the agreements dealing with the objectives of the schools, the 'Catholic Ethos' and 'Principles of Employment' provisions, were in the nature of mission statements for the teachers and the schools. The provisions did not impose obligations per se, but represented a statement of shared values underpinning the work of the schools and the teachers employed in them. 13 Mr Murphy submitted that nothing in the Act, and the principles which had been established by the Commission in relation to the approval of enterprise agreements, warranted the rejection of an application merely because it contained provisions which were qualitative as opposed to prescriptive in nature. It was further submitted that the means of assessing productivity and efficiency used in industry generally were not applicable to schools, and particularly in relation to the schools in question, which involved teaching children with various degrees of disability. He submitted that the very nature of the environment at the schools and the establishment of employment objectives required a reference to broad goals. 14 It was submitted that Commissioner McKenna had raised certain concerns regarding the provisions in the agreements related to co-curricular and extra curricular activities, and that these had been met by the parties in the fresh applications. 15 It was further submitted that there were no provisions in the award which related to hours of work, and that this was not an unusual position in awards governing teachers. The provisions of the agreements relating to co-curricular activities were simply a reflection of the practice in the teaching profession, both public and private. The provisions were a recognition and commitment to that aspect of teaching. They once again were a reflection of the practices at the schools in question. 16 In relation to compliance with the Anti-Discrimination Act, it was submitted by Mr Murphy that the provisions in the agreements did not offend that Act and that, in any event, the schools were relevantly exempt from the operation of the Anti-Discrimination Act. 17 Mr Murphy submitted that the employees of the schools had been actively and constructively involved in the negotiations of the agreements and that the agreements satisfied the requirements of the Act and the requirements of the principles for approval of enterprise agreements established by the Commission. 18 Ms Mathews, who appeared for the IEU, agreed with Mr Murphy's submissions and consented to the making of the agreements. The 'Catholic Ethos' provisions of the agreements may be approved, it was submitted, upon the basis that they fell within exemptions applicable to the schools in the Anti-Discrimination Act. Further, the IEU submitted that the provisions of the agreement were not such as to raise concerns under the no net detriment test. Consideration

19 Much of the submissions of the parties in this matter were directed to the decision made by Commissioner McKenna on 23 December 1999. Those submissions are relevant in that they provide a background to the bringing of the present applications. The decision by the Commissioner will be of some assistance in the consideration of the present application to the extent that the Commissioner made findings as to any similar provisions in the agreements. However, this matter does not represent a review of the Commissioner's decision in the nature of an appeal or other process of review. Furthermore, the provisions considered by the Commissioner in relation to the former agreements in her decision have been significantly altered in the agreements. 20 Rather, the Commission must assess the applications having regard to the statutory requirements for the approval of enterprise agreements (see, in particular, the provisions of s35 of the Act) and the principles for the approval of such agreements: Re Review of Principles for Approval of Enterprise Agreements 2000 (unreported, Wright J President, Walton J Vice-President, Schmidt J, Boland J and Redman C, 22 December 2000) ("the Principles"). 21 It is convenient to approach the assessment of the agreements by identifying three broad aspects of the agreements. The agreements establish: 1. Objectives and principles which act as a guide to the schools and their teachers in circumstances where each school provides, generally, education in accordance with Catholic values and ethics and, furthermore, has a particular mission such as the provision of education and care of the youth who are blind and visually impaired; 2. Mutual obligations for the school and teachers to facilitate teachers undertaking professional development. These obligations include the development of team-work structures and a collegiate approach between the school and teachers as to the education of the pupils; 3. Particular employment conditions such as salary packaging, flexibility in hours of work, the establishment of promotional positions and long service leave arrangements (including arrangements associated with the taking of parental leave). 22 It may be immediately stated that the third element of the agreements, so described, do not raise any controversy having regard to provisions of s35(1) of the Act or the principles governing the approval of enterprise agreements. This aspect of the agreements consists broadly of provisions which may be described as beneficial to the employees covered by the agreements. 23 The first aspect of the applications does raise, however, a variety of issues which were alluded to by Commissioner McKenna in her decision in relation to the former agreements (albeit in the context of the somewhat different terms in the former agreements). 24 One issue which arises with respect to this aspect of the agreements is whether the terms of the agreements, being non-prescriptive in nature and merely stating broad objectives for the employment of teachers at the schools, are appropriate for approval. 25 In my view, provisions incorporated in enterprise agreements, which essentially state broad objectives and which are non-prescriptive in their nature and character, are permissible under the Act and may materially assist in the establishment of co-operative workplace reform and equitable, innovative and productive workplace relations consistent with the objects of the Act (see s3(h) of the Act). So much was recognised by the Full Bench of the Commission in Re Review of Principles for Approval of Enterprise Agreements 2000 (at 73) (albeit in the context of examining provisions in awards) as follows: The expression "conditions of employment" should be construed as meaning the terms of employment which are found within the relevant awards. In modern awards, the terms of the award may not simply constitute traditional prescriptions such as rates of pay, allowances and non-monetary entitlements such as leave entitlements or hours of work. The non-monetary benefits found within awards are often not confined to such terms but also extend to terms which are more general in nature and less prescriptive in effect. Many awards contain consultative provisions, dispute settlement procedures and provisions relating to flexibility which do not confer specific monetary benefits or other entitlement upon employees but which may, in the particular circumstances of employment, nonetheless represent a benefit for an employee which may be taken into account under s35(1)(b). The terms of an award may also include references to the aspirations and objectives of the parties, the establishment of milestones or other achievement goals and the establishment of co-operative work arrangements such as team based structures. All of these terms in awards conform broadly with the objects of the Act in s3(h). That sub-section is in the following terms: To encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

26 A further question which arises is whether the provisions may be approved, having regard to the provisions of s35(1)(a) of the Act and, in particular, the terms of the Anti-Discrimination Act. The parties submitted that the schools relevantly attracted various exclusions applying under the Anti-Discrimination Act. On the limited evidence before me, and having regard to the submissions of the parties, it appears to me these submissions are correct. I have also had regard in this respect to the decision of the Full Bench in State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 at 434 - 435. 27 In any event, both with respect to the requirements of s35(1)(a) and the requirement to consider the existence of any "net detriment" pursuant to s35(1)(b), it appears to me that it is appropriate to take into account the submissions of Mr Murphy to the effect that the subject provisions are non-prescriptive and are intended merely to act for the establishment of broad principles or objectives for the schools and their employees. This construction of the agreements is certainly available from the terms of the agreements and I accept it for the purposes of this decision. This consideration plays a significant part in my determination in this matter and stands in contrast to the terms of the former agreements. 28 Whilst the second aspect of the agreements does impose some obligations upon employees, the agreements also provide reciprocal benefits by enhancing the professional development and standing of the teachers of the school so that considering the entirety of the provisions it may be concluded that the requirements of s35(1)(b) are satisfied. 29 Further, upon the evidence before the Commission, there was adequate discussion as to the provisions of the agreements with the teachers affected by those instruments. I consider that the requirements of the Principles as to provision of the information to employees and the involvement of employees in the process in reaching an agreement have been satisfied in this case. 30 In these circumstances, I am satisfied that the agreements meet the requirements of the Act and the Principles. 31 I approve the agreements pursuant to s35 of the Act. The agreements shall come into force on and from 9 February 2001 and shall continue in force for a period of two years.

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Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4

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