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

Industrial Relations Commission of New South Wales

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