Industrial Relations Commission of New South Wales CITATION : Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] NSWIRComm 191 APPLICANT New South Wales Teachers Federation PARTIES : RESPONDENT Department of Education and Training TAFE New South Wales FILE NUMBER: IRC3717 of 2004 CORAM: Walton J Vice-President; Boland J; Grayson DP; McLeay C CATCHWORDS : Award - Application to vary - Consent - Relevance of decision for Catholic schools - Leave reserved - Award varied. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202 Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004 and other awards [2004] NSWIRComm 159 HEARING DATES: 07/02/2004 EXTEMPORE JUDGMENT DATE : 07/02/2004 APPLICANT Mr S Crawshaw of senior counsel Mr M Gibian of counsel New South Wales Teachers Federation Ms B Seymour, Assistant General Secretary Research and Industrial LEGAL REPRESENTATIVES: RESPONDENT Mr R Kenzie of senior counsel Mr P Ginters of counsel Department of Education and Training TAFE New South Wales Mr G Boyd, Solicitor for the Crown Solicitor JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Acting President BOLAND J GRAYSON DP McLEAY C Friday 2 July 2004 Matter No IRC 3717 of 2004 CROWN EMPLOYEES (TEACHERS IN SCHOOLS AND TAFE AND RELATED EMPLOYEES) SALARIES AND CONDITIONS AWARD. Application by the New South Wales Teachers Federation for a variation of the award. DECISION EXTEMPORE [2004] IRComm 191 1 The genesis of this application by the Teachers Federation of NSW is the agreement reached between the NSW Department of Education and Training and the Federation in Matter No IRC 3749 of 2003 on 24 June 2004. 2 That agreement relevantly provided: The applicant and the respondent agree that an arbitration on the merits of the differential percentage increases to promotional positions in Catholic schools applying in Government schools may be brought as follows: 1. The applicant shall apply under s17(3)(c) of the Industrial Relations Act 1996 to vary the Award. 2. The respondent agrees that there is no jurisdictional impediment to the applicant's application in (1) above being pursued under s17(3)(c). 3. The respondent will not argue that the 'no extra claims' provision in the award precludes such a variation being made under s17(3)(c). 4. The applicant agrees that the proposed clause 16.1 as described at paragraph [417] of the Commission's Reasons for Decision will not be included as a provision of the Award. 5. The applicant will file and serve an application under s17(3)(c) as contemplated by these consent orders together with supporting grounds on or before 25 June 2004. 3 That agreement emerged after a resumption in the proceedings in Matter No IRC 3749 of 2003 as a result of the Commission listing the matter of its own motion. This application was thereafter filed and was the subject of a Major Industrial Case conference convened by the Acting President pursuant to Practice Direction 8A on 28 June 2004 at which conference the parties agreed upon a programme for hearing. The matter was listed for arbitration in the week commencing 30 August 2004. 4 However, the matter took a different course after advice was received from Mr P Riordan, General Manager Industrial Relations and Employment Services of the Department on 30 June 2004 to the effect that the Department, in consultation with the Government, had reviewed its position with the result that it would consent to additional salary increases for executive staff in New South Wales Government schools consistent with the quantum of increases awarded by the Commission in Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004 and other awards [2004] NSWIRComm 159 (the "Catholic schools case"). 5 The matter was listed for directions yesterday at which time Mr R Kenzie QC, who appeared with Mr P Ginters of counsel for the Department, advised that the Department consented to the application by the Federation, save for the proposed date of operation, and subject to the Federation revising its application in the light of a question raised by the Commission as to the form of the application. The matter was listed for hearing today. 6 We were advised today that the parties have reached a consent position as to rates of pay and operative dates. 7 The matter has moved with expedition after the Federation for the first time pursued a claim for persons in promotional positions in Government schools. The matter has not proceeded in this fashion due to any particular feature of the application or the Federation's conduct of it, but because the subject matter of the application, that is, the salaries of executive employees in Government schools has, following the decision in the Catholic schools case, apparently generated some disquiet in Government schools and the community based upon (it would appear from reports we have received) an ill-informed discussion (which was occasionally accompanied by some sectarian overtones) as to the cause of any difference between the rate of pay of Principals in the respective sectors. 8 We have had regard to the written submissions of the parties in this matter although we should not be taken by our decision to have necessarily accepted all aspects of them. However, in the light of the parties' agreement, and the evidence called in the primary proceedings from employees occupying executive classifications, the case for the grant of the application for variation is compelling. 9 The reasons for the granting of the application are, in that respect, no different to those applying in the Catholic schools case. It remains the case that the decision of the Full Bench in that matter was not based on any notion that executive salaries in such schools should receive an additional salary increase due to the role of executive staff in promulgating the Catholic faith or ensuring the provision of education based on the precepts of that religion. That conclusion does not require extensive research. It is clear on the face of the Full Bench decision in the Catholic schools case. There was no contrary contention otherwise advanced by the parties to these proceedings. 10 The recognition of these considerations is not only relevant to the question of expedition. It is equally relevant to the consideration of the substance of this application. 11 If the decision in the Catholic schools case with respect to executive salaries had proceeded upon a wider basis associated with religious instruction or upbringing then we may have been required to consider this matter from a different perspective. However, no such difficulty arises because of our early observations as to the reasons for decision in the Catholic schools case. 12 We observe that s17 does not stand in the way of this application as s17(3)(a) provides that the Commission may vary an award "at any time with the mutual consent of all parties to the making of the original award": re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202. 13 We vary, therefore, the award made by the Full Bench of the Commission in Matter No IRC 3749 of 2003 in terms of the amended application. We do not consider the leave reserved granted by the Full Bench in IRC 3749 of 2003 with respect to TAFE to be affected by the agreement reached between the parties referred to in paragraph [1] of this decision (which applied to persons in executive positions in Government Schools) or this decision. 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