Crown Employees (Teachers in Schools and Tafe and Related Employees) Salaries and Conditions Award [2003] NSWIRComm 481 (23 December 2003)

Last Updated: 5 January 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2003] NSWIRComm 481

FILE NUMBER(S): IRC4347

HEARING DATE(S): 01/04/2003, 02/04/2003, 03/04/2003, 04/04/2003, 08/04/2003, 09/04/2003, 27/05/2003, 28/05/2003, 24/07/2003, 31/07/2003, 06/08/2003, 07/08/2003, 08/08/2003

DECISION DATE: 23/12/2003

PARTIES:

APPLICANT

New South Wales Teachers Federation

RESPONDENT

Director-General Department of Education and Training, Managing Director TAFE New South Wales

JUDGMENT OF: Wright J President Walton J Vice-President Bishop C

LEGAL REPRESENTATIVES

APPLICANT:

Mr S Crawshaw SC and Ms P Lowson of counsel

INSTRUCTED BY:

Ms B Seymour

New South Wales Teachers Federation

RESPONDENT:

Mr P Menzies QC and Mr S Benson of counsel

INSTRUCTED BY:

Mr G Boyd

Crown Solicitors Office

CASES CITED: Amery & Or v The State of New South Wales (No. 1) [2001] NSWADT 37

Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361

State of New South Wales v Amery [2003] NSWADTAP 16

LEGISLATION CITED: Anti-Discrimination Act ss24 25

Industrial Relations Act 1996 s10

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WRIGHT J, President

WALTON J, Vice-President

BISHOP C

Tuesday 23 December 2003

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

[2003] NSWIRComm 481

1 This matter comes before the Commission in a particular way. On 28 June 2002 the Full Bench delivered its decision in respect of an application by the respondent to strike the proceedings out on certain threshold basis: see re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361. In refusing the application the Full Bench said:

[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).

2 The Full Bench went on to state:

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.

3 The reference to the decision of the Administrative Decisions Tribunal (ADT) - the successor to the Equal Opportunity Tribunal, in this extract is a reference to Amery & Or v The State of New South Wales (No. 1) [2001] NSWADT 37. The background to the ADT proceedings were that a number of teachers filed applications in the ADT under ss24 and 25 of the Anti-Discrimination Act alleging that their terms and conditions of employment were discriminatory based on gender. The surrounding facts and basis of the applications were summarised in the Tribunal's decision at paragraphs [39] - [40].

4 The original form of the Federation application relied on the following grounds:

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. 0n 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 1997.

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.

It will be observed that the decision of the ADT in Amery (No. 1) figured significantly in the genesis of this application.

5 These proceedings were then the subject of directions before the Full Bench which led to the taking of evidence before a Member of the Full Bench, Bishop C, over seven days.

6 Whilst that evidence was being taken, the Appeal Panel of the ADT on 12 June 2003 delivered the decision in State of New South Wales -v- Amery [2003] NSWADTAP 16 in which the State of New South Wales' appeal against the decision of November 2001 was allowed and the complaints of indirect discrimination were dismissed.

7 We were advised that a "holding appeal" has been lodged in the Court of Appeal against the Appeal Panel's decision and it is expected that the appeal will go ahead in due course although it was unlikely to be heard this year.

8 On 28 July 2003, the Federation filed an amended application which sought in the alternative to vary the award seeking that just and reasonable rates be set under s10 of the Industrial Relations Act 1996 and pursuant to the Special Case Principle so as to remove the unfairness and/or unreasonableness the Federation contended was present in the current award.

9 No further evidence was adduced by either side.

10 Submissions from the parties were heard before the Full Bench on 6 to 8 August 2003, with written submissions in reply filed by the Federation on 12 September 2003.

11 The Federation is also part-heard in an application for a new award seeking increases in salaries and allowances in accordance with s10 of the Industrial Relations Act 1996: Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award, Matter No IRC3749 of 2003 ("the primary proceedings").

12 Under the changed basis upon which this matter is brought, and after reviewing the submissions and evidence in these proceedings, we consider that there is the potential for issues or findings in this matter intersecting with findings made in the primary proceedings. We consider, in those circumstances, that this matter should give way, at this stage, to those other proceedings so as to enable us to have regard to any findings that may be there made. We acknowledge, however, that ultimately this matter will be determined on the evidence before us.

13 The Full Bench shall, therefore, adjourn this matter until after the determination of the primary proceedings at which time the parties shall have leave to file further submissions in relation to this matter in the light of that decision. We do not envisage the taking of further evidence in this matter. We accordingly order that this matter stand adjourned pending determination of the primary application.

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LAST UPDATED: 31/12/2003