Industrial Relations Commission of New South Wales CITATION : Crown Employees (Chief Education Officers - Department of School Education) Salaries and Conditions Award [2000] NSWIRComm 276 APPLICANT: Institute of Senior Educational Administrators of New South Wales PARTIES : RESPONDENT: New South Wales Department of Education and Training FILE NUMBER: IRC5523 of 1999; IRC289 of 2000 CORAM: Walton J Vice-President; Glynn J; Harrison DP; Bishop C CATCHWORDS : Application for new award - Award meets requirements of Act and has considerable industrial merit - Award review matter terminated as no longer applicable - Previous award rescinded and replaced - New award made LEGISLATION CITED : Industrial Relations Act 1996 Teaching Services Act 1980 CASES CITED : State Wage Case 1999 (1999) 88 IR 363 HEARING DATES: 11/16/2000 DATE OF JUDGMENT: 12/15/2000 APPLICANT: Mr P Ginters of Counsel for the Institute of Senior Educational Administrators of New South Wales SOLICITOR: Mr C G Staff Jones Staff & Co. LEGAL REPRESENTATIVES: RESPONDENT: Mr P Menzies of Queens Counsel for the Department of Education and Training SOLICITOR: Mr I V Knight Crown Solicitors Office JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Walton J, Vice President Glynn J Harrison DP Bishop C Friday 15 December 2000 Matter No IRC 289 of 2000 CROWN EMPLOYEES (CHIEF EDUCATION OFFICERS - DEPARTMENT OF SCHOOL EDUCATION) SALARIES AND CONDITIONS AWARD Application by Institute of Senior Educational Administrators of New South Wales re monetary rates Matter No IRC 5523 of 1999 CROWN EMPLOYEES (CHIEF EDUCATION OFFICERS - DEPARTMENT OF SCHOOL EDUCATION) SALARIES AND CONDITIONS AWARD Notice of Award Review pursuant to section 19 of the Industrial Relations Act 1996 DECISION OF THE COMMISSION 1 This matter was subject to hearing on 16 November 2000. Mr Menzies, of Queens counsel, appeared for the Director General, Department of Education and Training. Mr Ginters of counsel appeared for the Institute of Senior Education Administrators with Ms Wright and Mr Jarman. 2 The application in Matter No. IRC 289 of 2000 seeks the making of a new award and rescission of the existing award (which is subject to review pursuant to s19 of the Industrial Relations Act 1996 ("the Act") in Matter No. IRC 5523 of 1999. 3 Mr Ginters submitted that the existing Award had a nominal expiry date of 30 June 1999. He put that the parties had reached a consent position for the making of a new award in substantially similar terms, noting that the award sought contains four additional provisions agreed between the parties and increased wage rates. 4 Mr Ginters relied upon the grounds and reasons set out in Schedule B to the application to support the making of the award in the terms as sought by the parties, to commence on and from 1 January 2001. It was proposed that the award so made would remain in force until 31 December 2003. 5 Mr Ginters submitted that the award sought satisfies all statutory requirements. He made detailed submissions as to the applicant's compliance with ss 11(4), 13(1), 14 and 22 of the Act. 6 With respect to s 22 of the Act, and the issue of ordinary hours of work, Mr Ginters noted that although the proposed award does not set ordinary hours for employees, however in clause 6.2 the proposed award provides that "Chief Education Officers may negotiate with their supervisors for periods of working hours that meet both the department's and the personal circumstances of the Chief Education Officer". Mr Ginters put this as the basis upon which working hours are negotiated and arrived at for the purposes of the award. 7 In respect to s 26 of the Act dealing with sick leave, Mr Ginters noted that the sick leave entitlements are not dealt with in the proposed award. He advised that sick leave entitlements along with a number of other matters have been dealt with by negotiation between the parties resulting in agreement reached pursuant to s 26 of the Teaching Services Act which allows the Secretary of the Department to enter into an agreement with any association or organisation representing any group or class of officers or temporary employees as to any industrial matter. 8 Mr Ginters put that "such an agreement shall be binding on all officers and temporary employees in the class covered by the terms of the agreement." The agreement was tendered (exhibit 1) which, on examination provides sick leave, other forms of leave and certain conditions of employment in excess of legislative minima. 9 Mr Ginters noted that the proposed award contains the model anti-discrimination clause at clause 17, which he put is consistent with the principles established in the State Wage Case 1999 (1999) 88 IR 363. 10 Mr Ginters then went to s 23 of the Act dealing with the issue of equal remuneration and conditions of employment, and in this regard relied upon an affidavit sworn by Mr B Jarman in his capacity as the Secretary of the Institute of Senior Education Administrators of New South Wales which states in paragraph 5: "5. The basis of my contention is that the draft Consent Award provides: (a) Equal rates of pay and allowances for men and women. (b) Conditions of employment that apply equally for men and women. (c) The same professional and career development opportunities for men and women for each of the job qualifications encompassed by the draft Consent Award." 11 Mr Ginters then made submissions on four new clauses in the award: · Clause 9, which he put enshrines mobility provisions into the proposed award; · Clause 15, which he put provides a right of return of permanent officers temporarily appointed to Chief Educational Officer positions; · Clause 17, the model anti discrimination provision; and · Clause 18, which makes provision for a deferred salary scheme detailed in schedule 2 to the award. 12 The revised wage rates are set out in Table 1 to the award at part B. 13 Mr Menzies expressed the consent of the Department to the making of the Award. Matter No. 289 of 2000 14 We find that the application satisfies all statutory requirements and comes with the genuine consent and agreement of the parties. The application conforms with the relevant wage fixing principle. 15 The award is made in terms of the application with effect on and from 1 January 2001. It shall remain in force until 31 December 2003. Matter No IRC 5523 of 1999 16 This matter arises pursuant to section 19 of the Act requiring the review of awards. The award, subject to review, is rescinded on and from 1 January 2001 by the making of a new award by the Commission as presently constituted in matter no IRC 289 of 2000. Accordingly the need for review is removed and these proceedings are so concluded. We order the recission of the Crown Employees (Chief Education Officers - Department of School Education) Salaries and Conditions Award. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.